EXHIBIT 2.1
EXHIBIT I
HOLDING COMPANY MERGER AGREEMENT
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of [___________],
1998, between VAL COR BANCORPORATION, INC. ("Val Cor"), a corporation organized
under the laws of the State of Colorado, and EAGLE HOLDING COMPANY (the
"Company"), a corpora tion organized under the laws of the State of Colorado.
Val Cor and the Company are herein after sometimes individually called a
"Constituent Corporation" and collectively called the "Constituent
Corporations."
RECITALS
Val Cor is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado. As of [___________], 1998, the
authorized capital stock of Val Cor consisted of [___________] shares of Common
Stock, [___________] par value, of which [___________] shares were issued and
outstanding; no shares of capital stock were held in its treasury on such date.
All of the capital stock of Val Cor is owned of record and beneficially by Zions
Bancorpo ration, a corporation organized under the laws of the State of Utah
("Zions Bancorp").
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado. As of [___________] 1998,
the authorized capital stock of the Company consisted of [___________] shares of
Company Common Stock, [___________] par value (the "Company Common Stock"), of
which [___________] shares were issued and out standing; no shares of capital
stock were held in its treasury on such date.
Val Cor and the Company have entered into an Agreement and Plan of
Reorganization, dated June 3, 1998 (the "Plan of Reorganization"), setting forth
certain representations, warran ties, and agreements in connection with the
transactions therein and herein contemplated, which contemplates the merger of
the Company with and into Val Cor (the "Merger") in accordance with this
Agreement of Merger (the "Agreement").
The Boards of Directors of each of Val Cor and the Company deem the
Merger advisable and in the best interests of each corporation and its
stockholders. The Boards of Directors of each of Val Cor and the Company, by
resolutions duly adopted, have approved the Plan of Reorganization. The Boards
of Directors of each of Val Cor and the Company, by resolutions duly adopted,
have approved this Agreement. The Boards of Directors of each of Val Cor and the
Company have directed that this Agreement, and authorization for the
transactions contem plated hereby, be submitted to stockholders of Val Cor and
the Company respectively for approval.
At the Effective Date (as defined in Section 1.1 below) shares of
Company Common Stock shall be converted into the right to receive shares of the
common stock of Zions Bancorp, no par value (the "Zions Bancorp Stock"), as
provided herein.
In consideration of the premises and the mutual covenants and
agreements herein contained and subject to the terms and conditions of the
Agreement, the parties hereto hereby covenant and agree as follows:
ARTICLE I
1.1. Merger of the Company into Val Cor. The Company shall be merged
with and into Val Cor on the date and at the time to be specified in the
Articles of Merger to be filed with the Secretary of State of the State of
Colorado pursuant to section 0-000-000 of the Colorado Business Corporation Act
(such date and time being referred to herein as the "Effective Date").
1.2. Effect of the Merger. At the Effective Date:
(a) The Company and Val Cor shall be a single corporation, which
shall be Val Cor. Val Cor is hereby designated as the surviving corporation in
the Merger and is herein after sometimes called the "Surviving Corporation."
(b) The separate existence of the Company shall cease.
(c) The Surviving Corporation shall have all the rights,
privileges, immuni ties, and powers and shall assume and be subject to all the
duties and liabilities of a corporation organized under the Colorado Business
Corporation Act.
(d) The Surviving Corporation shall thereupon and thereafter
possess all of the rights, privileges, immunities, and franchises, of a public
as well as of a private nature, of each of the Constituent Corporations; and all
property, real, personal and mixed, and all debts due on whatever account,
including subscriptions to shares and all other choses in action, and all and
every other interest of and belonging to or due to each of the Constituent
Corporations shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and the title to any real
estate, or any interest therein, vested in either of the Consti tuent
Corporations shall not revert or be in any way impaired by reason of the Merger.
(e) The Surviving Corporation shall thenceforth be responsible
and liable for all the liabilities and obligations of each of the Constituent
Corporations; and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations may be prosecuted as if the
Merger had not taken place, or the Surviving Corporation may be substituted in
its place. The Surviving Corporation expressly assumes and agrees to perform all
of the Company's liabilities and obligations. Neither the rights of creditors
nor any liens upon the property of either Constituent Corporation shall be
impaired by the Merger.
(f) The Articles of Incorporation of Val Cor as they exist
immediately prior to the Effective Date shall be the Articles of Incorporation
of the Surviving Corporation until later amended pursuant to Colorado law.
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(g) At the Effective Date and until surrendered for exchange and
payment, each outstanding stock certificate which, prior to the Effective Date,
represented shares of Company Common Stock shall, without further action, cease
to be an issued and existing share and shall be converted into a right to
receive from Zions Bancorp, and shall for all purposes represent the right to
receive, upon surrender of the certificate formerly representing such shares,
the number of shares of Zions Bancorp Stock specified in Article III; provided
that, with respect to any matters relating to stock certificates representing
Company Common Stock, Zions Bancorp may rely conclusively upon the record of
stockholders maintained by the Company containing the names and addresses of the
holders of record of the Company's Common Stock at the Effective Date.
1.3. Acts to Carry Out This Merger Plan.
(a) The Company and its proper officers and directors shall and
will do all such acts and things as may be necessary or proper to vest, perfect,
or confirm title to such property or rights in Val Cor and otherwise to carry
out the purposes of this Agreement.
(b) If, at any time after the Effective Date, Val Cor shall
consider or be advised that any further assignments or assurances in law or any
other acts are necessary or desirable to (i) vest, perfect, or confirm, of
record or otherwise, in Val Cor its right, title, or interest in or under any of
the rights, properties, or assets of the Company acquired or to be acquired by
Val Cor as a result of, or in connection with, the Merger, or (ii) otherwise
carry out the purposes of this Agreement, the Company and its proper officers
and directors shall be deemed to have granted to Val Cor an irrevocable power of
attorney to execute and deliver all such proper deeds, assignments, and
assurances in law and to do all acts necessary or proper to vest, perfect, or
confirm title to and possession of such rights, properties, or assets in Val Cor
and otherwise to carry out the purposes of this Agreement; and the proper
officers and directors of Val Cor are fully authorized in the name of the
Company or otherwise to take any and all such action.
ARTICLE II
2.1. Capitalization. The authorized shares of capital stock of Val Cor
as of the Effective Date shall be [___________] shares of Common Stock,
[___________] par value.
2.2. By-Laws. The By-Laws of Val Cor as they exist immediately prior to
the Effective Date shall be the By-Laws of Val Cor until later amended pursuant
to Colorado law.
ARTICLE III
3.1. Manner of Converting Shares.
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(a) Subject to the terms, conditions, and limitations set forth
herein, upon surrender of his, her or its certificate or certificates, each
holder of shares of Company Common Stock shall be entitled to receive, in
exchange for each share of Company Common Stock held of record by such
stockholder as of the Effective Date, that number of shares of the common stock
of Zions Bancorp, no par value (the "Zions Bancorp Stock") calculated by
dividing the Consideration Number by the total number of shares of Company
Common Stock that shall be issued and outstanding at the Effective Date.
(b) As used in paragraph (a) of this section 3.2, the term
"Consideration Number" means 230,000. Notwithstanding the foregoing, if the
Transaction Expenses (as hereinafter defined), determined on a pre-tax basis in
accordance with generally accepted accounting principles, exceed $65,000, then
the "Consideration Number" shall be equal to 230,000 less the number calculated
by dividing the Transaction Expenses in excess of $65,000, net of any associated
tax benefit, by $50.375. As used in the preceding sentence, "Transaction
Expenses" are all expenses incurred from April 1, 1998 through the Effective
Date with respect to attorneys, accountants, investment bankers, consultants,
brokers and finders who will have rendered services to the Company or the Bank
in connection with the transactions contemplated by this Agreement, it being
agreed that none of the following expenses are Transaction Expenses: (i) the
cost of the audit of the financial statements of the Company and the Bank as of
December 31, 1997 and the year then ended; (ii) the monthly accrual of the
expense associated with the audit of the financial statements of the Company and
the Bank as of December 31, 1998 and the year then ended; (iii) the cost of
addressing the risk that certain computer applications used by the Company and
the Bank may be unable to recognize and perform properly date- sensitive
functions involving dates prior to and after December 31, 1999; (iv) costs
incurred at the request of Zions Bancorp, Val Cor or Vectra to prepare for the
electronic and systematic conversion of data regarding the Bank to Zions
Bancorp's own system of electronic data processing; (v) distribution of benefits
accrued for the benefit of participants in the Profit Sharing Plan of the Bank;
or (vi) costs of sponsoring Broomfield High School and City of Broomfield
scoreboards committed to before May 1, 1998 and related advertising costs
incurred by the Bank and accounted for under generally accepted accounting
principles.
3.2. No Fractional Shares. Zions Bancorp will not issue fractional
shares of its stock. In lieu of fractional shares of Zions Bancorp Stock, if
any, each shareholder of the Company who is entitled to a fractional share of
Zions Bancorp Stock shall receive an amount of cash equal to the product of such
fraction times $50.375. Such fractional share interest shall not include the
right to vote or to receive dividends or any interest thereon.
3.3. Dividends; Interest. No shareholder of the Company will be
entitled to receive dividends on his, her or its Zions Bancorp Stock until he,
she or it exchanges his, her or its certificates representing Company Common
Stock for Zions Bancorp Stock. Any dividends declared on Zions Bancorp Stock to
holders of record on or after the Effective Date shall, with respect to stock to
be delivered pursuant to this Agreement to shareholders of the Company who have
not exchanged their certificates representing Company Common Stock for Zions
Bancorp Stock, be paid to the Exchange Agent (as designated in Section 3.4 of
this Agreement) and, upon
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receipt from a former shareholder of the Company of certificates representing
shares of Company Common Stock, the Exchange Agent shall forward to such former
shareholder of the Company (i) certificates representing his or her shares of
Zions Bancorp Stock, (ii) dividends declared thereon subsequent to the Effective
Date (without interest) and (iii) the cash value of any fractional shares
determined in accordance with Section 3.2 hereof.
3.4. Designation of Exchange Agent.
(a) The parties to this Agreement hereby designate Zions First
National Bank, a national banking association with its head office located in
Salt Lake City, Utah ("Zions Bank"), as Exchange Agent to effect the exchanges
contemplated hereby.
(b) Zions Bancorp will, on the Effective Date or as soon
thereafter as is practicable, issue and deliver to Zions Bank the share
certificates representing shares of Zions Bancorp Stock and the cash to be paid
in lieu of fractional shares to holders of Company Common Stock in accordance
with this Agreement.
3.5. Notice of Exchange. Promptly after the Effective Date, Zions Bank
shall mail to each holder of one or more certificates formerly representing
Company Common Stock, except to such holders as shall have waived the notice
required by this Section 3.5, a letter of transmittal specifying the Effective
Date and notifying such holder of the procedures to be followed in surrendering
his, her or its certificate or certificates to Zions Bank for exchange. Such
notice shall be mailed to holders by regular mail at their addresses on the
records of the Company.
3.6. Treatment of Stock Options. Each stock option to purchase Company
Common Stock not exercised prior to the Effective Date shall automatically be
canceled on and as of the Effective Date.
ARTICLE IV
4.1. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
parties hereto. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for the other counterpart.
4.2. Section Headings. The section and subsection headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. Any reference to a "person"
herein shall include an individual, firm, corpora tion, partnership, trust,
government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
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4.3. Choice of Law and Venue. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Utah,
without giving effect to the principles of conflict of law thereof. The parties
hereby designate Salt Lake County, Utah and Boulder County, Colorado to be
proper jurisdictions and venues for any suit or action arising out of this
Agreement. Each of the parties consents to personal jurisdiction in each of such
venues for such a proceeding and agrees that it may be served with process in
any action with respect to this Agreement or the transactions contemplated
thereby by certified or registered mail, return receipt requested, or to its
registered agent for service of process in the State of Utah or Colorado. Each
of the parties irrevocably and unconditionally waives and agrees, to the fullest
extent permitted by law, not to plead any objection that it may now or hereafter
have to the laying of venue or the convenience of the forum of any action or
claim with respect to this Agreement or the trans actions contemplated thereby
brought in the courts aforesaid.
4.4. Binding Agreement. This Agreement shall be binding upon the
parties and their respective successors and assigns.
4.5. Amendment. Anything herein or elsewhere to the contrary
notwithstanding, to the extent permitted by law, this Agreement may be amended,
supplemented, or interpreted at any time prior to the Effective Date by written
instrument duly authorized and executed by each of the parties hereto, provided
that this Agreement may not be amended after the action by shareholders of the
Company in any respect that would prejudice the economic interests of such
Company shareholders, or any of them, except as specifically provided herein or
by like action of such shareholders.
4.6. Termination. This Agreement shall terminate and be abandoned upon
(i) termina tion of the Plan of Reorganization or (ii) the mutual consent of Val
Cor and the Company at any time prior to the Effective Date, and there shall be
no liability on the part of either of the parties hereto (or any of their
respective officers or directors) except to the extent provided in the Plan of
Reorganization.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VAL COR BANCORPORATION, INC.
Attest:____________________________________ By:____________________________________________
Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer and Secretary President and Chief Executive Officer
EAGLE HOLDING COMPANY
Attest:____________________________________ By:____________________________________________
Xxxxx X. Xxxxxx
Chairman, President and Chief Executive Officer
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--------------------
)
State of Colorado )
) ss.
County of Denver )
)
--------------------
On this [___________] day of [___________], 1998, before me personally
appeared Xxxx X. Xxxx, to me known to be the President and Chief Executive
Officer of Val Cor Bancorporation, Inc., and acknowledged said instrument to be
the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that he was authorized to execute
said instrument and that the seal affixed is the corporate seal of said
corporation.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
---------------------
Notary Public
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--------------------
)
State of Colorado )
) ss.
County of Boulder )
)
--------------------
On this [___________] day of [___________] 1998, before me personally
appeared Xxxxx X. Xxxxxx, to me known to be the Chairman, President and Chief
Executive Officer of Eagle Holding Company, and acknowledged said instrument to
be the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that he was authorized to execute
said instrument and that the seal affixed is the corporate seal of said
corporation.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
---------------------
Notary Public
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EXHIBIT II
BANK MERGER AGREEMENT
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of [___________],
1998, between VECTRA BANK COLORADO, NATIONAL ASSOCIATION ("Vectra"), a national
banking association organized under the laws of the United States, and EAGLE
BANK (the "Bank"), a banking corporation organized under the laws of the State
of Colorado. Vectra and the Bank are hereinafter sometimes individually called a
"Constituent Association" and collectively called the "Constituent
Associations."
RECITALS
Vectra is a national banking association duly organized, validly
existing and in good standing under the laws of the United States. As of
[___________], 1998, the authorized capital stock of Vectra consisted of
[___________] shares of Common Stock, $5.00 par value, of which [___________]
shares were issued and outstanding; no shares of capital stock were held in its
treasury on such date.
The Bank is a banking corporation organized under the laws of the State
of Colorado. As of [___________], 1998, the authorized capital stock of the Bank
consisted of [___________] shares of Bank Common Stock, [___________] par value
(the "Bank Common Stock"), of which [___________] shares were issued and
outstanding; no shares of capital stock were held in its treasury on such date.
Vectra and the Bank have entered into an Agreement and Plan of
Reorganization, dated June 3, 1998 (the "Plan of Reorganization"), setting forth
certain representations, warranties, and agreements in connection with the
transactions therein and herein contemplated, which contemplates the merger of
the Bank with and into Vectra (the "Merger") in accordance with this Agreement
of Merger (the "Agreement").
The Boards of Directors of each of Vectra and the Bank deem the Merger
advisable and in the best interests of each association and its stockholders.
The Boards of Directors of each of Vectra and the Bank, by resolutions duly
adopted, have approved the Plan of Reorganization. The Boards of Directors of
each of Vectra and the Bank, by resolutions duly adopted, have approved this
Agreement. The Boards of Directors of each of Vectra and the Bank have directed
that this Agreement, and authorization for the transactions contemplated hereby,
be submitted to stockholders of Vectra and the Bank respectively for approval.
In consideration of the premises and the mutual covenants and
agreements herein contained and subject to the terms and conditions of the
Agreement, the parties hereto hereby covenant and agree as follows:
ARTICLE I
1.1. Merger of the Bank into Vectra. The Bank shall be merged with and
into Vectra on the date and at the time to be specified in the Articles of
Merger to be filed with the Comptroller of the Currency pursuant to the National
Bank Act (such date and time being referred to herein as the "Effective Date").
1.2. Effect of the Merger. At the Effective Date:
(a) The Bank and Vectra shall be a single association, which
shall be Vectra. Vectra is hereby designated as the surviving association in the
Merger and is hereinafter some times called the "Surviving Association."
(b) The separate existence of the Bank shall cease.
(c) The currently outstanding [___________] shares of common
stock of Vectra, each of $5.00 par value, will remain outstanding as shares of
the $5.00 par value common stock of Vectra, and the holders of such stock shall
retain their present rights.
(d) The shares of Bank Common Stock shall be canceled.
(e) The Surviving Association shall have all the rights,
privileges, immunities, and powers and shall assume and be subject to all the
duties and liabilities of a national banking association organized under the
National Bank Act.
(f) The Surviving Association shall thereupon and thereafter
possess all of the rights, privileges, immunities, and franchises, of a public
as well as of a private nature, of each of the Constituent Associations; and all
property, real, personal and mixed, and all debts due on whatever account,
including subscriptions to shares and all other choses in action, and all and
every other interest of and belonging to or due to each of the Constituent
Associations shall be taken and deemed to be transferred to and vested in the
Surviving Association without further act or deed; and the title to any real
estate, or any interest therein, vested in either of the Constituent
Associations shall not revert or be in any way impaired by reason of the Merger.
(g) The Surviving Association shall thenceforth be responsible
and liable for all the liabilities and obligations of each of the Constituent
Associations; and any claim existing or action or proceeding pending by or
against either of the Constituent Associations may be prosecuted as if the
Merger had not taken place, or the Surviving Association may be substituted in
its place. The Surviving Association expressly assumes and agrees to perform all
of the liabilities and obligations of the Bank. Neither the rights of creditors
nor any liens upon the property of either Constituent Association shall be
impaired by the Merger.
(h) The name of the Surviving Association shall be "Vectra
Bank Colorado, National Association."
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(i) The Articles of Association of Vectra as they exist
immediately prior to the Effective Date shall be the Articles of Association of
the Surviving Association until later amended pursuant to the laws of the United
States.
(j) The By-Laws of Vectra as they exist immediately prior to
the Effective Date shall be the By-Laws of Vectra until later amended pursuant
to the laws of the United States.
1.3. Acts to Carry Out This Merger Plan.
(a) The Bank and its proper officers and directors shall and
will do all such acts and things as may be necessary or proper to vest, perfect,
or confirm title to such property or rights in Vectra and otherwise to carry out
the purposes of this Agreement.
(b) If, at any time after the Effective Date, Vectra shall
consider or be advised that any further assignments or assurances in law or any
other acts are necessary or desirable to (i) vest, perfect, or confirm, of
record or otherwise, in Vectra its right, title, or interest in or under any of
the rights, properties, or assets of the Bank acquired or to be acquired by
Vectra as a result of, or in connection with, the Merger, or (ii) otherwise
carry out the purposes of this Agreement, the Bank and its proper officers and
directors shall be deemed to have granted to Vectra an irrevocable power of
attorney to execute and deliver all such proper deeds, assign ments, and
assurances in law and to do all acts necessary or proper to vest, perfect, or
confirm title to and possession of such rights, properties, or assets in Vectra
and otherwise to carry out the purposes of this Agreement; and the proper
officers and directors of Vectra are fully authorized in the name of the Bank or
otherwise to take any and all such action.
ARTICLE II
2.1. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
parties hereto. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for the other counterpart.
2.2. Section Headings. The section and subsection headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. Any reference to a "person"
herein shall include an individual, firm, corporation, partnership, trust,
government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
2.3. Choice of Law and Venue. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Utah,
without giving effect to the principles of conflict of law thereof. The parties
hereby designate Xxxx Xxxx Xxxxxx, Xxxx xxx Xxxxxxx
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Xxxxxx, Xxxxxxxx to be proper jurisdictions and venues for any suit or action
arising out of this Agreement. Each of the parties consents to personal
jurisdiction in each of such venues for such a proceeding and agrees that it may
be served with process in any action with respect to this Agreement or the
transactions contemplated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
State of Utah or Colorado. Each of the parties irrevocably and unconditionally
waives and agrees, to the fullest extent permitted by law, not to plead any
objection that it may now or hereafter have to the laying of venue or the
convenience of the forum of any action or claim with respect to this Agreement
or the trans actions contemplated thereby brought in the courts aforesaid.
2.4. Binding Agreement. This Agreement shall be binding upon the
parties and their respective successors and assigns.
2.5. Amendment. Anything herein or elsewhere to the contrary
notwithstanding, to the extent permitted by law, this Agreement may be amended,
supplemented, or interpreted at any time prior to the Effective Date by written
instrument duly authorized and executed by each of the parties hereto.
2.6. Termination. This Agreement shall terminate and be abandoned upon
(i) termination of the Plan of Reorganization or (ii) the mutual consent of
Vectra and the Bank at any time prior to the Effective Date, and there shall be
no liability on the part of either of the parties hereto (or any of their
respective officers or directors) except to the extent provided in the Plan of
Reorganization.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION
Attest:____________________________________ By:____________________________________________
Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer and Secretary President and Chief Executive Officer
EAGLE BANK
Attest:____________________________________ By:____________________________________________
Xxxxx X. Xxxxxx
Chairman, President and Chief Executive Officer
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--------------------
)
State of Colorado )
) ss.
County of Denver )
)
--------------------
On this [___________] day of [___________], 1998, before me personally
appeared Xxxx X. Xxxx, to me known to be the President and Chief Executive
Officer of Vectra Bank Colorado, National Association, and acknowledged said
instrument to be the free and voluntary act and deed of said association, for
the uses and purposes therein mentioned, and on oath stated that he was
authorized to execute said instrument and that the seal affixed is the corporate
seal of said association.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
---------------------
Notary Public
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--------------------
)
State of Colorado )
) ss.
County of Boulder )
)
--------------------
On this [___________] day of [___________], 1998, before me personally
appeared Xxxxx X. Xxxxxx, to me known to be the Chairman, President and Chief
Executive Officer of Eagle Bank, and acknowledged said instrument to be the free
and voluntary act and deed of said association, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said
instrument and that the seal affixed is the corporate seal of said association.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
---------------------
Notary Public
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EXHIBIT III
AGREEMENT TO EXERCISE OPTIONS
June 3, 1998
Zions Bancorporation
Xxx Xxxxx Xxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Mesdames and Gentlemen:
The undersigned understands that Zions Bancorporation ("Zions Bancorp")
is about to enter into an Agreement and Plan of Reorganization with Eagle
Holding Company (the "Company") (the "Agreement"). The Agreement provides for
the merger of the Company with and into Val Cor Bancorporation, Inc., a
wholly-owned subsidiary of Zions Bancorp (the "Merger") and the conversion of
outstanding shares of Company Stock into Zions Bancorp Common Stock and cash in
lieu of fractional shares in accordance with the formula therein set forth.
In order to induce Zions Bancorp to enter into the Agreement, and
intending to be legally bound hereby, the undersigned represents, warrants, and
agrees that prior to the Effective Date (as defined in the Agreement) of the
Merger he will exercise all stock options to purchase Company Common Stock which
he owns and which by their terms are then exercisable.
Very truly yours,
___________________________
Xxxxx X. Xxxxxx
Accepted and Agreed to:
ZIONS BANCORPORATION
By:______________________
Title:___________________
EXHIBIT IV
VOTING AGREEMENT
June 3, 1998
Zions Bancorporation
Xxx Xxxxx Xxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Mesdames and Gentlemen:
The undersigned understands that Zions Bancorporation ("Zions Bancorp")
is about to enter into an Agreement and Plan of Reorganization with Eagle
Holding Company (the "Company") (the "Agreement"). The Agreement provides for
the merger of the Company with and into Val Cor Bancorporation, Inc., a
wholly-owned subsidiary of Zions Bancorp (the "Merger") and the conversion of
outstanding shares of Company Stock into Zions Bancorp Common Stock and cash in
lieu of fractional shares in accordance with the formula therein set forth.
In order to induce Zions Bancorp to enter into the Agreement, and
intending to be legally bound hereby, the undersigned, subject to the conditions
hereinafter stated, represents, warrants, and agrees that at the Company
Shareholders' Meeting contemplated by Section 3.1 of the Agreement and Plan of
Reorganization (the "Meeting"), and any adjournment thereof, the under signed
will, in person or by proxy, vote or cause to be voted in favor of the Agreement
and the Merger the shares of Company Common Stock beneficially owned by the
undersigned individu ally or, to the extent of the undersigned's proportionate
voting interest, jointly with other persons, as well as, to the extent of the
undersigned's proportionate voting interest, any other shares of Company Common
Stock over which the undersigned may hereafter acquire beneficial ownership in
such capacities (collectively, the "Shares"). Subject to the final paragraph of
this agreement, the undersigned further agrees that he will use his best efforts
(not including the payment of money or other consideration) to cause any other
shares of Company Common Stock over which he has or shares voting power to be
voted in favor of the Agreement and the Merger.
The undersigned further represents, warrants, and agrees that beginning
upon the authorization and execution of the Agreement by the Company until the
earlier of (i) the consummation of the Merger or (ii) the termination of the
Agreement in accordance with its terms, the undersigned will not, directly or
indirectly:
(a) vote any of the Shares, or cause or permit any of the Shares to be
voted, in favor of any other sale of control, merger, consolidation, plan of
liquidation, sale of assets,
Zions Bancorporation
June 3, 1998
Page 2
reclassification, or other transaction involving the Company or any of its
subsidiaries which would have the effect of assisting or facilitating the
acquisition of control by any person other than Zions Bancorp or an affiliate
thereof over the Company or any substantial portion of its assets or assisting
or facilitating the acquisition of control by any person other than Zions
Bancorp or an affiliate, or the Company or a wholly-owned subsidiary of the
Company, of any subsidiary of the Company or any substantial portion of its
assets. As used herein, the term "control" means (1) the ability to direct the
voting of 10 percent or more of the outstanding voting securities of a person
having ordinary voting power in the election of directors or in the election of
any other body having similar functions or (2) the ability to direct the
management and policies of a person, whether through ownership of securities,
through any contract, arrangement, or understanding or otherwise.
(b) voluntarily sell or otherwise transfer any of the Shares, or cause
or permit any of the Shares to be sold or otherwise transferred (i) pursuant to
any tender offer, exchange offer, or similar proposal made by any person other
than Zions Bancorp or an affiliate thereof, (ii) to any person seeking to obtain
control (as the term "control" is defined in paragraph (a), above) of the
Company, any of its subsidiaries or any substantial portion of the assets of the
Company or any subsidiary thereof or to any other person (other than Zions
Bancorp or an affiliate thereof) under circumstances where such sale or transfer
may reasonably be expected to assist a person seeking to obtain such control,
(iii) for the purpose of avoiding the obligations of the undersigned under this
agreement, or (iv) to any transferee unless such transferee expressly agrees in
writing to be bound by the terms of this agreement in all events.
It is understood and agreed that this agreement relates solely to the
capacity of the undersigned as a shareholder or other beneficial owner of the
Shares and does not prohibit the undersigned, if a member of the Board of
Directors of the Company or a member of the Board of Directors of Eagle Bank,
from acting, in his or her capacity as a director, as the undersigned may
determine to be appropriate in light of the obligations of the undersigned as a
director. It is further understood and agreed that the term "Shares" shall not
include any securities beneficially owned by the undersigned as a trustee or
fiduciary for another (unless such other person is affiliated with the
undersigned or is bound by an agreement with Zions Bancorp substantially
Zions Bancorporation
June 3, 1998
Page 3
similar to this agreement), and that this agreement is not in any way intended
to affect the exercise by the undersigned of the undersigned's fiduciary
responsibility in respect of any such securities.
Very truly yours,
___________________________
Accepted and Agreed to:
ZIONS BANCORPORATION
By:_______________________
Title:____________________
Zions Bancorporation
June 3, 1998
Page 4
Name of Shareholder:
Shares of Common Stock of Eagle Holding Company
Beneficially Owned
As of June 3, 1998
Name(s) of Number of
Record Owner(s) Beneficial Ownership 1/ Shares
--------------- ----------------------- ------
--------
1/ For purposes of this Agreement, shares are beneficially owned by the
shareholder named above if held in any capacity other than a fiduciary capacity
(other than a revocable living trust and other than a fiduciary capacity on
behalf of a person who is affiliated with the shareholder or is bound by an
agree ment with Zions Bancorp substantially similar to this agreement) and if
the shareholder named above has the power (alone or, in the case of shares held
jointly with his or her spouse, together with his or her spouse) to direct the
voting of such shares.
EXHIBIT V
CONSENT TO ASSIGNMENT AND AMENDMENT TO LEASE AGREEMENT
CONSENT TO ASSIGNMENT
Pursuant to Section 7.01 of the Lease Agreement dated January 1, 1998
("the Lease") by and between MCR, a Colorado general partnership ("MCR") and
Xxxxxx Family Partnership, LLLP, a Colorado limited liability limited
partnership ("Xxxxxx") (MCR and Xxxxxx being collectively referred to herein as
"Landlord"), and Eagle Bank, a Colorado corporation ("Tenant"), Landlord hereby
consents to the assignment of the Lease by virtue of the merger of Tenant with
Vectra Bank Colorado, National Association, and the merger of Eagle Holding
Company, Tenant's parent, with Val Cor Bancorporation, Inc.
TENANT: LANDLORD:
EAGLE BANK, MCR,
a Colorado banking corporation a Colorado general partnership
By: __________________________ By:____________________________________
Name: Xxxxx X. Xxxxxx, Xx. Name: Xxxx Xxxxx a/k/a Xxxx X. Xxxxx
Title: President Title: General Partner
Date:_________________________ Date:__________________________________
By: Mountaire, Inc.,
a Colorado corporation, General
Partner
By:_____________________________
Name: Xxxx Xxxxx
Title: President
Date:___________________________
XXXXXX FAMILY PARTNERSHIP, LLLP,
a Colorado limited liability limited
partnership
By:____________________________________
Name: Xxx X. Xxxxxx
Title: General Partner
Date:__________________________________
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT ("Amendment") is made this third day
of June, 1998 by and between MCR, a Colorado general partnership ("MCR") and
Xxxxxx Family Partnership, LLLP, a Colorado limited liability limited
partnership ("Xxxxxx") (MCR and Xxxxxx being collectively referred to herein as
"Landlord"), and Eagle Bank, a Colorado corporation ("Tenant"), Landlord and
Tenant collectively referred to as the parties.
WHEREAS, the parties hereto entered into a Lease Agreement dated
January 1, 1998 ("the Lease") pursuant to which Landlord leased to Tenant
approximately 8474 square feet of rentable area known commonly as Eagle Bank
Building located at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Boulder, in
the State of Colorado; and
WHEREAS, the parties desire to modify the Lease as more particularly
described herein.
NOW, THEREFORE, in consideration of the premises, mutual promises and
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Defined Terms. Unless otherwise specified herein, all terms
contained in this Amendment that are defined in the Lease shall have the same
meaning ascribed to them in the Lease.
2. Term. Section 1.05 of the Lease is hereby amended to read as
follows:
The term of this Lease shall be the period commencing on the
Commencement Date as hereinafter defined and continuing for
one hundred twenty (120) full months following the
Commencement Date, unless sooner terminated as provided in
this Lease. Options to extend the Term are addressed in
Exhibit C attached hereto and made a part hereof. The
provisions of this section 1.05, including the options
addressed in Exhibit C to the Lease, shall apply equally to
any assignee of Tenant who has taken an assignment subject to
the provisions of Section 7.01.
3. Minimum Rent. Section 1.07 of the Lease is hereby amended to
read as follows:
Tenant shall pay to Landlord as Minimum Rent, at the address
for payments set forth in Section 8.02 below, without notice
or demand and without set off or deduction for any reason
whatsoever, during the Term of this Lease the total sum
determined in accordance
with the following table, payable in advance, on the first day
of each calendar month during the Term in the monthly
installments:
AMOUNT OF AMOUNT
MONTHS MONTHLY OF ANNUAL
PAYMENTS RENT
Month 1 through the end of
the month in which Tenant
merges with an affiliate
of Zions Bancorporation $10,000.00 $120,000.00
The month following the
month in which Tenant
merges with an affiliate
of Zions Bancorporation
through month 60 $11,000.00 $132,000.00
Month 61 through month 120 $12,000.00 $144,000.00
Landlord hereby acknowledges receipt of Ten
Thousand and 00/100 Dollars ($10,000.00), which
amount represents payment of Minimum Rent for
the first month of the Term.
4. Use. Section 1.10 of the Lease is hereby amended to add at the
end of that section the following language:
Tenant shall have the right, subject to the
provisions of Section 7.01, to sublet space in
the Premises to other business concerns
reasonably acceptable to Landlord, whether or
not such other business concerns are engaged in
financial services and related general office
uses.
5. Assignee Sublease or Assignment. Section 7.01(B)(3) of the
Lease is hereby deleted.
6. Assignment or Sublease Consideration. Section 7.01(B)(5) of
the Lease is hereby deleted.
- 2 -
7. Remedies Upon Default. Section 7.04(A)(i) of the Lease is
hereby amended to read as follows:
Terminate this Lease by written notice to
Tenant, in which event Tenant shall immediately
surrender the Premises to Landlord, and if
Tenant fails to do so, Landlord may without
prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon
and take possession of the Premises and expel or
remove Tenant and any other person occupying the
Premises, or any part thereof. This may be done
by peaceful means or by other means available
under applicable law, including, without
limitation, an action for forcible detainer,
without being liable for prosecution or any
claim or constructive eviction or for damages of
any kind; and Tenant agrees to pay to Landlord,
on demand, damages in an amount equal to the
present value (calculated at a discount rate of
ten percent per annum) of the amount of Minimum
Rent, Additional Rent and other payments
provided for in this Lease for the remainder of
the term to be paid by Tenant, less the fair
rental value of the Premises for the remainder
of the term, plus all expenses incurred by
Landlord in taking possession (including all
court costs and reasonable attorneys' fees) and
plus all Minimum Rent, Additional Rent and other
indebtedness owed by Tenant to the date of
termination.
8. Landlord Liability. Section 8.18 of the Lease is hereby
deleted.
9. Extension of Terms. Section (1)(b) of Exhibit C of the Lease
is hereby amended to read as follows:
Tenant gives and Landlord receives written
notice not less than twelve (12) months prior to
the expiration of the initial Term of the Lease,
or the expiration of the most recent Extended
Term (as hereinafter defined) as the case may
be, of Tenant's intention to extend the Term of
the Lease (the "Extended Term"); and
10. Rent During Extension of Terms. Section (2) of Exhibit C of
the Lease is hereby amended to read as follows:
- 3 -
(2) THEN:
Landlord will grant to Tenant the right to
extend the term of this Lease upon the
expiration of the initial Term (or the most
recent Extended Term, as the case may be) for
one or two consecutive periods of sixty (60)
months each (each an Extended Term) for a total
of one hundred twenty (120) months upon the same
terms and conditions herein except that
(a) after the second Extended Term there shall
be no further right to extend the Term; and
(b) the Minimum Rent payable during each rental
year during the Extended Term shall be as
follows:
AMOUNT OF AMOUNT
MONTHS MONTHLY OF ANNUAL
PAYMENTS RENT
121 through 180 $13,100.00 $157,200.00
181 through 240 $14,310.00 $171,720.00
11. No Modification. Except as specifically modified and amended
hereby, the Lease shall remain in full force and effect.
- 4 -
IN WITNESS WHEREOF, the parties have executed this Amendment under seal
as of the date first above written.
TENANT: LANDLORD:
EAGLE BANK, MCR,
a Colorado banking corporation a Colorado general partnership
By:___________________________ By:____________________________________
Name: Xxxxx X. Xxxxxx, Xx. Name: Xxxx Xxxxx a/k/a Xxxx X. Xxxxx
Title: President Title: General Partner
Date:_________________________ Date:__________________________________
By: Mountaire, Inc.,
a Colorado corporation, General
Partner
By:_______________________________
Name: Xxxx Xxxxx
Title: President
Date:_____________________________
XXXXXX FAMILY PARTNERSHIP, LLLP,
a Colorado limited liability limited
partnership
By:____________________________________
Name: Xxx X. Xxxxxx
Title: General Partner
Date:__________________________________
- 5 -
EXHIBIT VIII
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into this
[___________] day of [___________], 1998, by and between XXXXX X. XXXXXX
("Executive") and VECTRA BANK COLORADO, NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States ("Resulting Bank")
W I T N E S S E T H T H A T :
WHEREAS, the Agreement and Plan of Reorganization (the "Plan") dated as
of June 3, 1998 by and among Zions Bancorporation, a Utah corporation, ("Zions
Bancorp"), Val Cor Bancorporation, Inc., a Colorado corporation, Resulting Bank,
Eagle Holding Company, a Colorado corporation, and Eagle Bank, a banking
corporation organized under the laws of the State of Colorado (the "Bank"),
provides that the Bank will be merged with and into Resulting Bank;
WHEREAS, Executive is Chairman, President and Chief Executive Officer
of the Bank;
WHEREAS, Resulting Bank desires to secure the employment of Executive
upon consummation of the transactions contemplated in the Plan;
WHEREAS, Executive is desirous of entering into the Agreement for such
periods and upon the terms and conditions set forth herein; and
WHEREAS, to assist in achieving the objectives of the transactions
described in the Plan, section 4.9 of the Plan contemplates that Executive will
enter into an employment agreement as a condition to the consummation of the
transactions described therein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agree ments hereinafter set forth, the parties agree as follows:
1. Employment; Responsibilities and Duties.
(a) Resulting Bank hereby agrees to employ Executive, and Executive
hereby agrees to serve as [___________] of Resulting Bank and of any depository
institution which is successor-in-interest thereto ("Resulting Bank" hereafter
to include any depository institution which is successor-in-interest thereto)
during the Term of Employment. Executive shall have primarily management
responsibility for the lending, deposit gathering, and other banking activities
of Resulting Bank within the community formerly served by the Bank and shall
have such other reasonable duties, responsibilities, and authority as shall be
set forth in the bylaws of Resulting Bank on the date of this Agreement or as
may otherwise be determined by Resulting Bank.
(b) Executive shall devote his full working time and best efforts to
the performance of his responsibilities and duties hereunder and to the
retention of the customer relationships to which the Bank has been a party prior
to the date of this Agreement. During the Term of Employment, Executive shall
not, without the prior written consent of the Board of Directors of Resulting
Bank, render services as an employee, independent contractor, or otherwise,
whether or not compensated, to any person or entity other than Resulting Bank or
its affiliates; provided that Executive may, where involvement in such
activities does not individually or in the aggregate significantly interfere
with the performance by Executive of his duties or violate the provisions of
section 4 hereof, (i) render services to charitable organizations, (ii) render
to any organization set forth in Schedule A to this Agreement the services
described in Schedule A under the caption of such organization, (iii) manage his
personal investments, and (iv) with the prior permission of the Board of
Directors or the chief executive officer of Resulting Bank, hold such other
directorships or part-time academic appointments or have such other business
affiliations as would otherwise be prohibited under this section 1. In the event
that Executive should wish to procure the prior permission of the Board of
Directors or the chief executive officer of Resulting Bank under clause (iv) of
the previous sentence he will provide to the chief executive officer of
Resulting Bank a written summary of the organization and proposed services to be
rendered to it and shall be entitled to receive a response within five working
days; in the absence of such a response, the prior permission of the Resulting
Bank will be deemed to have been granted.
2. Term of Employment.
(a) The term of this Agreement ("Term of Employment") shall be the
period com mencing on the date hereof (the "Commencement Date") and continuing
until the Termination Date, which shall mean the earliest to occur of:
(i) the third anniversary of the Commencement Date, unless the
Term of Employment shall be extended by mutual written agreement of Executive
and Resulting Bank;
(ii) the death of Executive;
(iii) Executive's inability to perform his duties hereunder,
as a result of physical or mental disability as reasonably determined by the
personal physician of Executive, for a period of at least 180 consecutive days
or for at least 180 days during any period of twelve consecutive months during
the Term of Employment; or
(iv) the discharge of Executive by Resulting Bank "for cause,"
which shall mean one or more of the following:
(A) any willful or gross misconduct by Executive with
respect to the business and affairs of Resulting Bank, or with respect to any of
its affiliates for which Executive is assigned material responsibilities or
duties;
- 2 -
(B) the conviction of Executive of a felony (after
the earlier of the expiration of any applicable appeal period without perfection
of an appeal by Executive or the denial of any appeal as to which no further
appeal or review is available to Executive) whether or not committed in the
course of his employment by Resulting Bank;
(C) Executive's willful neglect, failure, or refusal
to carry out his duties hereunder in a reasonable manner; or
(D) the breach by Executive of any representation or
warranty in section 6(a) hereof or of any agreement contained in section 1, 4,
5, or 6(b) hereof, which breach is material and adverse to Resulting Bank or any
of its affiliates for which Executive is assigned material responsibilities or
duties; or
(v) Executive's resignation from his position as [ ] of
Resulting Bank; or
(vi) the termination of Executive's employment by Resulting
Bank "without cause," which shall be for any reason other than those set forth
in subsections (i), (ii), (iii), (iv), or (v) of this section 2(a), at any time,
upon the thirtieth day following notice to Executive.
(b) In the event that the Term of Employment shall be terminated for
any reason other than that set forth in section 2(a)(vi) hereof, Executive shall
be entitled to receive, upon the occurrence of any such event:
(i) any salary (as hereinafter defined) payable pursuant to
section 3(a)(i) hereof which shall have accrued as of the Termination Date; and
(ii) such rights as Executive shall have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to section 3(e)
hereof, and the right to receive the cash equivalent of paid annual leave and
sick leave accrued as of the Termination Date pursuant to section 3(c) hereof.
(c) In the event that the Term of Employment shall be terminated for
the reason set forth in section 2(a)(vi) hereof, Executive shall be entitled to
receive:
(i) any salary (as hereinafter defined) payable pursuant to
section 3(a)(i) hereof which shall have accrued as of the Termination Date;
(ii) for the period commencing on the date immediately
following the Termination Date and ending upon and including the third
anniversary of the Commencement Date, salary payable at the rate established
pursuant to section 3(a)(i) hereof, in a manner consistent
- 3 -
with the normal payroll practices of Resulting Bank with respect to executive
personnel as presently in effect or as they may be modified by Resulting Bank
from time to time;
(iii) such rights as Executive may have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to section 3(e)
hereof, and the right to receive the cash equivalent of paid annual leave and
sick leave accrued as of the Termination Date pursuant to section 3(c) hereof;
and
(iv) for the period commencing on the date immediately
following the Termination Date and ending upon and including the earlier of (A)
the first anniversary of the Termination Date, (B) the third anniversary of the
Commencement Date, or (C) the date on which Executive ceases to be covered under
the health insurance plan of Resulting Bank (the "Health Plan") under section
4980B of the Internal Revenue Code (also known as COBRA) ("COBRA"), the
difference between the monthly premium payment that is charged to continue
coverage for Executive under the Health Plan under COBRA and the portion of the
monthly premium payment that would have been charged to Executive to continue
coverage for Executive under the Health Plan of Resulting Bank had he remained
employed by Resulting Bank during such period.
3. Compensation. For the services to be performed by Executive for
Resulting Bank under this Agreement, Executive shall be compensated in the
following manner:
(a) Salary.
(i) During the Term of Employment Resulting Bank shall pay
Executive a salary which shall not be less than $110,000 per annum. Salary shall
be payable in accordance with the normal payroll practices of Resulting Bank
with respect to executive personnel as presently in effect or as they may be
modified by Resulting Bank from time to time.
(ii) During the Term of Employment Executive shall be eligible
to be considered for salary increases, upon review, in accordance with the
compensation policies of Resulting Bank with respect to executive personnel as
presently in effect or as they may be modified by Resulting Bank from time to
time.
(b) Employee Benefit Plans or Arrangements. During the Term of
Employment, Executive shall be entitled to participate in all employee benefit
plans of Resulting Bank, as presently in effect or as they may be modified or
added by Resulting Bank from time to time, under such terms as may be applicable
to officers of Executive's rank employed by Resulting Bank or its affiliates,
including, without limitation, plans providing retirement benefits, profit
sharing, benefits under senior-management bonus programs, medical insurance,
life insurance, disability insurance, and accidental death or dismemberment
insurance, and any other benefit programs available to other executives of
Executive's rank with Resulting Bank.
- 4 -
(c) Vacation and Sick Leave. During the Term of Employment, Executive
shall be entitled to paid annual vacation periods and sick leave in accordance
with the policies of Resulting Bank as in effect as of the Commencement Date or
as may be modified by Resulting Bank from time to time as may be applicable to
officers of Executive's rank employed by Resulting Bank or its affiliates, but
in no event less than that provided to Executive by the Bank at March 31, 1998.
(d) Withholding. All compensation to be paid to Executive hereunder
shall be subject to required withholding and other taxes.
(e) Expenses. During the Term of Employment, Executive shall be
reimbursed for reasonable travel and other expenses incurred or paid by
Executive in connection with the performance of his services under this
Agreement, upon presentation of expense statements or vouchers or such other
supporting information as may from time to time be requested, in accordance with
such policies of Resulting Bank as are in effect as of the Commencement Date and
as may be modified by Resulting Bank from time to time, under such terms as may
be applicable to officers of Executive's rank employed by Resulting Bank or its
affiliates.
(f) Vehicle. During the Term of Employment, (i) Executive shall have
exclusive use of the Ford Explorer vehicle which the Bank permitted him to use
in 1997, and (ii) Resulting Bank shall pay the reasonable expenses of
maintaining, insuring, and garaging that vehicle. For a period of thirty days
after the Termination Date, Executive shall be entitled to purchase that vehicle
from Resulting Bank at a price equal to its book value net of accumulated
depreciation on the books of Resulting Bank.
4. Confidential Business Information; Non-Competition.
(a) Executive acknowledges that certain business methods, creative
techniques, and technical data of Zions Bancorp and Resulting Bank and their
affiliates and the like are deemed by Resulting Bank to be and are in fact
confidential business information either of Zions Bancorp or Resulting Bank or
their affiliates or are entrusted to third parties. Such confidential
information includes but is not limited to procedures, methods, sales
relationships developed while in the service of Resulting Bank or its
affiliates, knowledge of customers and their require ments, marketing plans,
marketing information, studies, forecasts, and surveys, competitive analyses,
mailing and marketing lists, new business proposals, lists of vendors,
consultants, and other persons who render service or provide material to Zions
Bancorp or Resulting Bank or their affiliates, and compositions, ideas, plans,
and methods belonging to or related to the affairs of Zions Bancorp or Resulting
Bank or their affiliates. In this regard, Resulting Bank asserts proprietary
rights in all of its business information and that of its affiliates except for
such information as is clearly in the public domain. Notwithstanding the
foregoing, information that would be generally known or available to persons
skilled in Executive's fields shall be considered to be "clearly in the public
domain" for the purposes of the preceding sentence. Executive agrees that he
will not disclose or divulge to any third party, except as may be
- 5 -
required by his duties hereunder, by law, regulation, or order of a court or
government authority, or as directed by Resulting Bank, nor shall he use to the
detriment of Resulting Bank or its affiliates or use in any business or on
behalf of any business competitive with or substantially similar to any business
of Zions Bancorp or Resulting Bank or their affiliates, any confidential
business information obtained during the course of his employment by Resulting
Bank. The foregoing shall not be construed as restricting Executive from
disclosing such information to the employees of Zions Bancorp or Resulting Bank
or their affiliates.
(b) Executive hereby agrees that from the Commencement Date until the
second anniversary of the Termination Date, Executive will not (i) engage in the
banking business other than on behalf of Zions Bancorp or Resulting Bank or
their affiliates within the Market Area (as hereinafter defined), (ii) directly
or indirectly own, manage, operate, control, be employed by, or provide
management or consulting services in any capacity to any firm, corporation, or
other entity (other than Zions Bancorp or Resulting Bank or their affiliates)
engaged in the banking business in the Market Area, or (iii) directly or
indirectly solicit or otherwise intentionally cause any employee, officer, or
member of the respective Boards of Directors of Resulting Bank or any of its
affiliates to engage in any action prohibited under (i) or (ii) of this section
4(b); provided that the ownership by Executive as an investor of not more than
five percent of the outstanding shares of stock of any corporation whose stock
is listed for trading on any securities exchange or is quoted on the automated
quotation system of the National Association of Securities Dealers, Inc., or the
shares of any investment company as defined in section 3 of the Investment
Company Act of 1940, as amended, shall not in itself constitute a violation of
Executive's obligations under this section 4(b); and provided further that
employment by Bankers' Bank of the West, Denver, Colorado shall not in itself
constitute a violation of Executive's obligations under this section 4(b) if
Executive does not provide retail or wholesale services or solicit retail or
wholesale business within the Market Area, and does not provide retail or
wholesale services to or solicit retail or wholesale business from any client or
customer or potential client or potential customer of Bankers' Bank of the West
that is engaged in the banking business in the Market Area.
(c) Executive acknowledges and agrees that irreparable injury will
result to Resulting Bank in the event of a breach of any of the provisions of
this section 4 (the "Designated Provisions") and that Resulting Bank will have
no adequate remedy at law with respect thereto. Accordingly, in the event of a
material breach of any Designated Provision, and in addition to any other legal
or equitable remedy Resulting Bank may have, Resulting Bank shall be entitled to
the entry of a preliminary and permanent injunction (including, without
limitation, specific performance) by a court of competent jurisdiction in Denver
County, Colorado or Boulder County, Colorado to restrain the violation or breach
thereof by Executive or any affiliates, agents, or any other persons acting for
or with Executive in any capacity whatsoever, and Executive submits to the
jurisdiction of such court in any such action.
(d) It is the desire and intent of the parties that the provisions of
this section 4 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each juris-
- 6 -
diction in which enforcement is sought. Accordingly, if any particular provision
of this section 4 shall be adjudicated to be invalid or unenforceable, such
provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made. In addition, should any court determine that
the provisions of this section 4 shall be unenforceable with respect to scope,
duration, or geographic area, such court shall be empowered to substitute, to
the extent enforceable, provisions similar hereto or other provisions so as to
provide to Resulting Bank, to the fullest extent permitted by applicable law,
the benefits intended by this section 4.
(e) As used herein, "Market Area" shall mean the Colorado counties of
Xxxxx, Arapahoe, Boulder, Denver, Douglas, Jefferson, and Weld.
(f) As used in this section 4, "banking business" includes businesses
(including commercial banks, trust companies, savings banks, savings and loan
associations, and credit unions) primarily engaged in lending and the extension
of credit, accepting federally insured deposits, or engaging in the trust
business, and does not include businesses (including firms primarily engaged in
the sale of insurance or in the businesses of a broker-dealer, investment
adviser, or financial planner) for which the foregoing activities are not
performed or are merely incidental.
5. Life Insurance. In light of the unusual abilities and experience of
Executive, Resulting Bank in its discretion may apply for and procure as owner
and for its own benefit insurance on the life of Executive, in such amount and
in such form as Resulting Bank may choose. Resulting Bank shall make all
payments for such insurance and shall receive all benefits from it. Executive
shall have no interest whatsoever in any such policy or policies but, at the
request of Resulting Bank, shall submit to medical examinations and supply such
information and execute such documents as may reasonably be required by the
insurance company or companies to which Resulting Bank has applied for
insurance. Ineligibility for insurance shall not be a basis for termination.
6. Representations and Warranties.
(a) Executive represents and warrants to Resulting Bank that his
execution, delivery, and performance of this Agreement will not result in or
constitute a breach of or conflict with any term, covenant, condition, or
provision of any commitment, contract, or other agreement or instrument,
including, without limitation, any other employment agreement, to which
Executive is a party.
(b) Executive shall indemnify, defend, and hold harmless Resulting Bank
for, from, and against any and all losses, claims, suits, damages, expenses, or
liabilities, including court costs and counsel fees, to which Resulting Bank may
become subject, insofar as such losses, claims, suits, damages, expenses,
liabilities, costs, or fees arise out of or are based upon any
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failure of any representation or warranty of Executive in section 6(a) hereof to
be true and correct when made.
7. Notices. All notices, consents, waivers, or other communications
which are required or permitted hereunder shall be in writing and deemed to have
been duly given if delivered personally or by messenger, transmitted by telex or
telegram, by express courier, or sent by registered or certified mail, return
receipt requested, postage prepaid. All communications shall be addressed to the
appropriate address of each party as follows:
If to Resulting Bank:
Vectra Bank Colorado, N.A.
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
With a required copy to:
Xxxxx X. Xxxxxx, Esq.
Duane, Morris & Heckscher LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If to Executive:
Xx. Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000
With a required copy to:
Xxxxx X. Xxxxxxxx, Esq.
0000 X. Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
8. Assignment. Neither party may assign this Agreement or any rights or
obliga tions hereunder without the consent of the other party.
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9. Governing Law. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Colorado, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate Denver County, Colorado and Boulder County, Colorado to be proper
jurisdictions and venues for any suit or action arising out of this Agreement.
Each of the parties consents to personal jurisdiction in each of such venues for
such a proceeding and agrees that he or it may be served with process in any
action with respect to this Agreement or the transactions contemplated thereby
by certified or registered mail, return receipt requested, or to its registered
agent for service of process in the state of Colorado. Each of the parties
irrevocably and unconditionally waives and agrees, to the fullest extent
permitted by law, not to plead any objection that it may now or hereafter have
to the laying of venue or the convenience of the forum of any action or claim
with respect to this Agreement or the transactions contemplated thereby brought
in the courts aforesaid.
10. Entire Agreement. This Agreement constitutes the entire
understanding between Resulting Bank and Executive relating to the subject
matter hereof. Any previous agreements or understandings between the parties
hereto or between Executive and the Bank or any of its affiliates or Resulting
Bank or any of its affiliates regarding the subject matter hereof, including
without limitation the terms and conditions of employment, compensation,
benefits, retirement, competition following employment, and the like, are merged
into and superseded by this Agreement. Neither this Agreement nor any provisions
hereof can be modified, changed, discharged, or terminated except by an
instrument in writing signed by the party against whom any waiver, change,
discharge, or termination is sought.
11. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever:
(a) the validity, legality, and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement contain ing any such provision held to be invalid,
illegal, or unenforceable) shall not in any way be affected or impaired thereby;
and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provisions held to be invalid, illegal, or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal, or unenforceable.
12. Arbitration. Subject to the right of each party to seek specific
performance (which right shall not be subject to arbitration), if a dispute
arises out of or related to this Agreement, or the breach thereof, such dispute
shall be referred to arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). A dispute subject to the
provisions of this section will exist if either party notifies the other party
in writing that a dispute subject to arbitration exists and states, with
reasonable specificity, the issue subject to arbitration (the "Arbitration
Notice"). The parties agree that, after the issuance of the
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Arbitration Notice, the parties will try in good faith to resolve the dispute by
mediation in accordance with the Commercial Rules of Arbitration of AAA between
the date of the issuance of the Arbitration Notice and the date the dispute is
set for arbitration. If the dispute is not settled by the date set for
arbitration, then any controversy or claim arising out of this Agreement or the
breach hereof shall be resolved by binding arbitration and judgment upon any
award rendered by arbitrator(s) may be entered in a court having jurisdiction.
Any person serving as a mediator or arbitrator must have at least ten years'
experience in resolving commercial disputes through arbitration. In the event
any claim or dispute involves an amount in excess of $100,000, either party may
request that the matter be heard by a panel of three arbitrators; otherwise all
matters subject to arbitration shall be heard and resolved by a single
arbitrator. The arbitrator shall have the same power to compel the attendance of
witnesses and to order the production of documents or other materials and to
enforce discovery as could be exercised by a United States District Court judge
sitting in the District of Colorado. In the event of any arbitration, each party
shall have a reasonable right to conduct discovery to the same extent permitted
by the Federal Rules of Civil Procedure, provided that such discovery shall be
concluded within ninety days after the date the matter is set for arbitration.
Any provision in this Agreement to the contrary notwithstanding, this section
shall be governed by the Federal Arbitration Act and the parties have entered
into this Agreement pursuant to such Act.
13. Costs of Litigation. In the event litigation is commenced to
enforce any of the provisions hereof, or to obtain declaratory relief in
connection with any of the provisions hereof, the prevailing party shall be
entitled to recover reasonable attorney's fees. In the event this Agreement is
asserted in any litigation as a defense to any liability, claim, demand, action,
cause of action, or right asserted in such litigation, the party prevailing on
the issue of that defense shall be entitled to recovery of reasonable attorney's
fees.
14. Affiliation. A company will be deemed to be "affiliated" with Zions
Bancorp, Resulting Bank, or the Bank according to the definition of "Affiliate"
set forth in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
15. Headings. The section and subsection headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto executed or caused this
Agreement to be executed as of the day and year first above written.
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION
Attest:_________________________ By:___________________________
XXXXX X. XXXXXX
Witness:________________________ ______________________________
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SCHEDULE A
Broomfield Economic Development Corporation
Board member and member of executive committee (since 1990)
Broomfield Community Foundation
Board member since 1996
Broomfield Rotary Club
Club member and chairman of foundation committee since 1990
Bal Swan Children's Center
Board member since 1992
Member of finance committee, building committee
Broomfield Blast Soccer Club
Coach of girls team since 1993
Broomfield United Methodist Church
Member of building committee and building finance committee
