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Exhibit 10(a)
ADDITIONAL INVESTMENT AGREEMENT
THIS ADDITIONAL INVESTMENT AGREEMENT (the "Agreement") is made and
entered into as of October __, 1995, by and between FIRST COMMERCIAL BANCORP,
INC., a Delaware corporation (the "Company"), FIRST COMMERCIAL BANK, a
California chartered banking corporation, and FIRST BANKS, INC., a Missouri
corporation ("First Banks").
W I T N E S S E T H
WHEREAS, the parties to this Agreement entered into an Amended and
Restated Stock Purchase Agreement dated August 7, 1995 (the "Stock Purchase
Agreement"), pursuant to which First Banks was given the option under certain
circumstances to make additional investments in the Company or the Bank for the
purpose of increasing the capital levels of the Bank;
WHEREAS, the Bank anticipates that it will not meet, on or before
October 31, 1995, the 6.5% tangible capital requirement of the Second Amended
Final Order of the California State Banking Department under California
Financial Code Section 1913 (the "State Order");
WHEREAS, the Bank has obtained the agreement of the California State
Banking Department ("SBD") to revise the required tangible capital level to 3.0%
as of October 31, 1995, based upon First Banks' intended infusion of capital;
WHEREAS, First Banks desires to make a capital infusion to the Bank
sufficient to increase the Bank's tangible capital requirement to 3.0% as of
October 31, 1995;
WHEREAS, the Stock Purchase Agreement provides that unless the Company
is conducting the Offering at the time of the additional capital contribution of
First Banks, such additional capital contribution shall be made by the purchase
of shares of Company Common Stock, the proceeds of which will be contributed by
the Company to the Bank;
WHEREAS, the parties hereto, with the concurrence of Xx. Xxxxx X.
Xxxxxxxx, a signatory to the Stock Purchase Agreement, wish to amend and
supersede by this Agreement any contradictory provisions of the Stock Purchase
Agreement with respect to the additional capital contribution of First Banks to
the Company or the Bank contemplated hereby; and
WHEREAS, unless otherwise defined herein, the capitalized terms used in
this Agreement shall have those meanings assigned to them in the Stock Purchase
Agreement:
NOW, THEREFORE, for and in consideration of the promises contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of all of which is hereby acknowledged, the parties hereto agree as
follows:
1. On or before October 31, 1995, First Banks shall lend to the
Company an additional $1.5 million which is required to increase the Bank's
tangible capital ratio to 3.0% as of October 31, 1995 (the "Investment Amount").
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2. The Company hereby agrees to borrow from First Banks, pursuant
to the terms and conditions set forth in the debenture attached hereto as
Exhibit 2 (the "Investment Debenture"), the Investment Amount, and the Company
hereby agrees to execute such Investment Debenture. The Company hereby further
agrees to contribute to the Bank all of the proceeds of the Investment
Debenture.
3. Delivery of the Investment Amount and execution of the
Investment Debenture shall occur at the executive offices of the Bank no later
than 12:00 p.m. California time on October 31, 1995, but may occur on such
earlier date as may be agreed upon by the parties upon receipt of the Approvals
referred to below (the "Investment Closing Date").
4. Notwithstanding anything set forth in this Agreement, First
Banks' loan of the Investment Amount, the Company's issuance of the Investment
Debenture, the payment of any interest amount of the Investment Debenture in
cash and the conversion of the principal and any interest amounts of the
Investment Debenture into shares of Company Common Stock shall be subject,
respectively, to receipt of all necessary regulatory Approvals. Each party
hereto agrees to expeditiously file for and use its best efforts to obtain any
required Approval.
5. The terms of this Agreement are intended to supersede the
provisions of Section 1(b)(iii) of the Stock Purchase Agreement to the extent
Section 1(b)(iii) concerns a contribution of capital by First Banks to the
Company or the Bank to enable the Bank to meet the requirements of the State
Order by October 31, 1995. The provisions of Section 1(b)(iii) with respect to
a further capital contribution by First Banks to the Bank as of December 31,
1995 shall not be altered by this Agreement.
6. This Agreement shall terminate: (a) upon the termination of
the Stock Purchase Agreement or (b) in the event that the required Approvals are
not obtained on or prior to October 31, 1995, unless such date shall have been
extended by the mutual consent of the parties hereto.
7. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware in effect at the time of the
execution hereof.
8. This Agreement may be executed in any number of counterparts,
each of which counterparts when so executed and delivered shall be deemed to be
an original, but all such respective counterparts shall together constitute but
one and the same instrument.
9. Any notices required to be given pursuant to this Agreement
shall be given in accordance with Section 13 of the Stock Purchase Agreement.
10. Except as set forth herein, all other provisions and terms of
the Stock Purchase Agreement remain unchanged and in full force and effect. This
Agreement shall not operate as an amendment or waiver of, or estoppel with
respect to, any other obligation, covenant, agreement or condition contained in
the Stock Purchase Agreement.
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11. This Agreement, together with the Stock Purchase Agreement, and
together with the Letters of Representation and Approvals to be received
pursuant hereto, constitute the entire agreement of the parties with respect to
the subject matter hereof.
IN WITNESS WHEREOF, and intending to be legally bound thereby, each of
First Banks, Inc., First Commercial Bank and First Commercial Bancorp, Inc. has
signed or caused to be signed its name, all as of the day and year first above
written, and Xxxxx X. Xxxxxxxx has consented to the terms of this Agreement by
execution hereof.
FIRST COMMERCIAL BANCORP, INC.
By:______________________________________
Name: Xxxxxx Xxxxx, Xx.
Title: Chairman of the Board of Directors
FIRST COMMERCIAL BANK
By:______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Interim President
DIERBERG
_________________________________________
Xxxxx X. Xxxxxxxx, an individual
FIRST BANKS, INC.
By:______________________________________
Name:
Title:
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