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Exhibit 10.17
ESCROW AGREEMENT
ESCROW AGREEMENT, effective as of the ___ day of March, 2001, by and
among certain of the shareholders listed on Exhibit A to this Escrow Agreement
(the "Shareholders" or "Shareholder") of GLACIER CORPORATION, a Delaware
corporation (the "Company"), XXXXXXXXX SECURITIES, INC. (the "Representative")
and COMPUTERSHARE TRUST COMPANY, INC. (the "Escrow Agent").
WHEREAS, the Shareholders are the record and beneficial owners of
ceratin of the Company's $.0001 par value common stock ("Common Stock") all as
more fully reflected on Exhibit A to this Escrow Agreement;
WHEREAS, the Company and the Representative of the several underwriters
(the "Underwriters") intend to enter into an underwriting agreement (the
"Underwriting Agreement") pursuant to which the Company will sell Common Stock
in a public offering pursuant to the registration provisions of the Securities
Act of 1933, as amended (the "1933 Act");
WHEREAS, as a condition to closing the proposed public offering of the
Company (the "Offering"), the Representative has required the Shareholders to
deposit an aggregate of 500,000 shares of Common Stock owned by such
Shareholders in Escrow with the Escrow Agent as reflected on Exhibit A (the
"Escrow Shares"); and
WHEREAS, the Shareholders wish to deposit the Escrow Shares in Escrow
in order to fulfill the requirements of the Underwriting Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, terms and conditions hereinafter set forth, the parties to this
Escrow Agreement agree as follows:
SECTION 1. DESIGNATION AND DEPOSIT OF ESCROW SHARES.
a. The Escrow Shares to be deposited in Escrow pursuant to
this Escrow Agreement consist of 500,000 shares of Common Stock of the
Company and are owned of record as of the date of this Escrow Agreement
by the Shareholders identified on Exhibit A.
b. On the date on which the Securities and Exchange Commission
declares the Company's Registration Statement on Form S-1 (Reg. No.
333-_____) effective under the 1933 Act (the "Effective Date"), the
Shareholders shall deliver to the Escrow Agent any and all certificates
representing the Escrow Shares and a stock power endorsed in blank with
a medallion guarantee. Promptly after the Effective Date, the Escrow
Agent shall deliver a receipt therefor and, if requested by a
Shareholder, a new certificate representing each Shareholder's share of
Common Stock represented by the certificates delivered but which are
not subject to this Escrow Agreement.
SECTION 2. TITLE OF ACCOUNT. All certificates representing the Escrow
Shares delivered to the Escrow Agent pursuant to this Agreement shall be
deposited on the Effective Date
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by the Escrow Agent in an account designated
substantially as follows: "Glacier Corporation Escrow Share Account" (the
"Escrow Account").
SECTION 3. TRANSFER OF ESCROW SHARES DURING ESCROW PERIOD.
a. During the Escrow Period (as defined below) none of the
Escrow Shares deposited in the Escrow Account shall be sold, pledged,
hypothecated or otherwise transferred or delivered out of the Escrow
Account except:
i. transfers by operation of law;
ii. transfers of ownership certificates representing
the Escrow Shares, certificates for which have been deposited
to the Escrow Account, shall remain subject to the
restrictions imposed hereby, including those persons, if any,
who become holders, by any means provided herein, of the
Escrow Shares during the Escrow Period.
SECTION 4. DURATION OF ESCROW PERIOD.
a. The Escrow Period shall commence on the Effective Date and
shall terminate on the earlier of the date on which all Escrow Shares
have been returned to the Shareholders pursuant to Sections 6(a), 6(b),
6(c) or 6(d) below.
b. This Agreement shall be of no force or effect in the event
the Underwriting Agreement is not executed on the Effective Date in
accordance with its terms.
SECTION 5. RECEIPT OF DISTRIBUTIONS AND DIVIDENDS. During the term of
the Escrow Period, if the Company issues any distributions, dividends, rights or
other property with respect to the Common Stock, then, in such event, the
Company shall be authorized to send evidence of such distributions, dividends,
rights or other property directly to the Escrow Agent, which is hereby
authorized to hold and retain possession of all such evidences of distributions,
dividends, rights or other property until termination of the Escrow Period in
accordance with Section 6 below. In the event the Escrow Shares are distributed
to the Shareholders pursuant to Sections 6(a), 6(b), 6(c) or 6(d) below, then
the Escrow Agent will distribute evidences of such distributions, dividends,
rights, or other property in the form the Escrow Agent received such
distributions, dividends, rights, or other property from the Company. If the
Company recapitalizes, splits or combines its shares, such shares shall be
substituted on a pro rata basis for the Escrow Shares. The Company will notify
the Escrow Agent of the occurrence of the events listed in this section.
SECTION 6. RELEASE AND DELIVERY OF ESCROW SHARES.
a. In the event the Escrow Agent receives written notice from
the Representative and the Company confirming that the Company had pro
forma (based on a full 12-month period for all acquired operations,
giving effect to such acquisitions as if they had occurred on the first
day of fiscal year 2001 and giving retroactive effect for the period
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from the first day of fiscal year 2001 to the date of acquisition to
prospective changes to salaries, bonuses, benefits, lease payments and
other expenses in a manner consistent with that used in the preparation
of the Unaudited Pro Forma Condensed Combined Financial Information of
the Company set forth in the prospectus used in connection with the
Offering) revenues exceeding $250 million and after tax net income of
$6 million in fiscal 2001, the Escrow Agent shall return to each
Shareholder a certificate for its share of the Escrow Shares as are
listed on Exhibit A. The Escrow Agent shall return the Escrow Shares
only to the person or entity named as the holder of record in Exhibit A
to this Escrow Agreement, as modified by any transfers made pursuant to
Section 3 above.
b. In the event the Escrow Agent receives written notice from
the Representative and the Company confirming the Company had pro forma
(based on a full 12-month period for all acquired operations, giving
effect for the period from the first day of fiscal year 2002 and giving
retroactive effect for the period from the first day of fiscal year
2002 to the date of acquisition to prospective changes to salaries,
bonuses, benefit, lease payments and other expenses in an manner
consistent with that used in the preparation of the Unaudited Pro Forma
Condensed Combined Financial Information of the Company set forth in
the prospectus used in connection with the Offering) revenues exceeding
$300 million and after tax net income of $7.5 million in fiscal year
2002, the Escrow Agent shall return to each Shareholder a certificate
for its share of the Escrow Shares as are listed on Exhibit A. The
Escrow Agent shall return each certificate only to the person or entity
named as the holder of record in Exhibit A hereto, as modified by any
transfers made pursuant to Section 3 above.
c. In the event the Escrow Agent receives written notice from
the Representative and the Company confirming that the Company has been
merged or consolidated, or has executed a share exchange, with another
company which is the survivor to the transaction or in which the
stockholders of the Company own less that 50% of the outstanding
capital stock of the surviving entity, or that the Company has sold all
or substantially all of its assets and the relevant transaction was
approved by the holders of a majority of the Company's outstanding
voting securities exclusive of the Escrow Shares held hereunder, the
Escrow Agent shall contemporaneously with the closing of any such
transaction return to each Shareholder a certificate for his share of
the Escrow Shares as are listed on Exhibit A. The Escrow Agent shall
return each certificate only to the person or entity named as the
holder of record in Exhibit A hereto, as modified by any transfers made
pursuant to Section 3 above.
d. In the event none of the criteria for release specified in
subparagraphs (a), (b) or (c) above is reached by the Company, the
Escrow Shares shall remain in the Escrow Account until a date that is
seven years from the Effective Date. Upon termination of the Escrow
Period pursuant to the provisions of this Section 6(d), the Escrow
Agent shall, as promptly as possible, return to each Shareholder a
certificate for its share of the Escrow Shares as are listed on Exhibit
A. The Escrow Agent shall return each certificate only to the person
named as the holder of record in Exhibit A hereto, as modified by any
transfers made pursuant to Section 3 above.
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e. At such time as the Escrow Agent shall have returned all
Escrow Shares as provided in this Section, the Escrow Agent shall be
discharged completely and released from any and all further liabilities
and responsibilities under this Escrow Agreement.
f. The determination of the criteria described above shall be
solely the responsibility of the Company and the Representative, and
the Escrow Agent shall have no liability or responsibility therefor.
SECTION 7. VOTING RIGHTS. During the Escrow Period, each Shareholder,
or any transferee receiving all or a portion of the Escrow Shares of such
Shareholder pursuant to Section 3 of this Escrow Agreement, shall have the right
to vote in such Escrow Shares (to the extent the Escrow Shares have voting
rights) in the Escrow Account at any and all shareholder meetings without
restriction.
SECTION 8. LIMITATION OF LIABILITY OF ESCROW AGENT. In acting pursuant
to this Escrow Agreement, the Escrow Agent shall be protected fully in every
reasonable exercise of its discretion and shall have no obligation hereunder to
either the Shareholders or to any other party except as expressly set forth
herein. In performing any of its duties hereunder, the Escrow Agent shall not
incur any liability to any person for any damages, losses or expenses, except
for willful default or negligence and it shall, accordingly, not incur any such
liability with respect to (1) any action taken or omitted in good faith upon
advice of its counsel, counsel for the Company or counsel for the Representative
given with respect to any questions relating to the duties and responsibilities
of the Escrow Agent under this Agreement, and (2) any action taken or omitted in
reliance upon any instrument, including written notices provided for herein, not
only to its due execution and validity and effectiveness of its provisions, but
also to the truth and accuracy of any information contained therein, which the
Escrow Agent shall in good faith believe to be genuine, to have been signed and
presented by a proper person or persons and to be in compliance with the
provisions of this Agreement.
SECTION 9. INDEMNIFICATION. The Company, the Representative and the
Shareholders shall indemnify and hold harmless the Escrow Agent against any and
all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigation and counsel fees and disbursements, which may be imposed
upon the Escrow Agent or incurred by Escrow Agent in connection with its
acceptance of appointment as Escrow Agent or the performance of its duties
hereunder, including any litigation arising from this Escrow Agreement or
involving the subject matter of this Escrow Agreement.
SECTION 10. PAYMENT OF FEES. The Company shall be responsible for all
reasonable fees and expenses of the Escrow Agent incurred by it in the course of
performing under this Escrow Agreement.
SECTION 11. CHANGE OF ESCROW AGENT. In the event the Escrow Agent
notifies the Company and the Representative that its acceptance of the duties of
Escrow Agent has been terminated by the Escrow Agent, or in the event the Escrow
Agent files for protection under the United States Bankruptcy Code or is
liquidated or ceases operations for any reason, the Company
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and the Representative shall have the right to jointly designate a replacement
Escrow Agent who shall succeed to the rights and duties of the Escrow Agent
hereunder. Any such replacement Escrow Agent shall be a trust or stock transfer
company experienced in stock transfer, escrow and related matters and shall have
a minimum net worth of $5 million. Upon appointment of such successor Escrow
Agent, the Escrow Agent shall be discharged from all duties and responsibilities
hereunder.
SECTION 12. NOTICES. All notices, demands or requests required or
authorized hereunder shall be deemed given sufficiently if in writing and sent
by registered mail or certified mail, return receipt requested and postage
prepaid and by facsimile or cable:
In the case of the Representative to:
Xxxxxxxxx Securities, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. X'Xxxxxx, President
With a copy to (which shall not constitute notice):
Xxxxxx & Whitney LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
In the case of the Escrow Agent to:
ComputerShare Trust Company, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Vice President
In the case of the Company to:
Glacier Corporation
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chief Executive Officer
With a copy to (which shall not constitute notice):
Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
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In the case of the Shareholders to the addresses on the records of the
Escrow Agent.
SECTION 13. COUNTERPARTS. This Escrow Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same Escrow Agreement. Facsimile signatures shall
be accepted as original signatures for all purposes.
SECTION 14. GOVERNING LAW. The validity, interpretation and
construction of this Escrow Agreement and of each part hereof shall be governed
by the laws of the State of Colorado.
IN WITNESS WHEREOF, the Shareholders, the Company, the Representative
and the Escrow Agent have executed this Escrow Agreement to be effective as of
the day and year first above written.
COMPUTERSHARE TRUST COMPANY, INC.:
By: ______________________________________
Title: ______________________________________
GLACIER CORPORATION:
By: ______________________________________
Xxxxxx X. Xxxxx, Chief Executive Officer
XXXXXXXXX SECURITIES, INC.:
By: ______________________________________
Xxxxxx X. X'Xxxxxx, President
THE SHAREHOLDERS:
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
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EXHIBIT A
TO ESCROW AGREEMENT
Name Total Shares
Xxxxxx X. Xxxxx....................................
Xxxxx X. Xxxxxxxx..................................
Xxxxx Xxxx-Xxxxxxx.................................
Xxxxxx X. Xxxxxxxxx, Xx............................
Xxxxx X. Xxxxxxxxx ................................
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Total.............................................. 500,000
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