EXHIBIT 2.1
EXHIBIT I
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HOLDING COMPANY MERGER AGREEMENT
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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 MOUNTAIN FINANCIAL HOLDING COMPANY
(the "Company"), a corporation organized under the laws of the State of
Colorado. Val Cor and the Company are hereinafter 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
Bancorporation, 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 outstanding; 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 May [_______], 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 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 contemplated 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 hereinafter sometimes called the "Surviving
Corporation."
(b) The separate existence of the Company shall cease.
(c) The Surviving Corporation shall have all the rights,
privileges, immunities, 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 Constituent
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.
(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.
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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. Subject to the terms, conditions, and
limitations set forth herein, upon surrender of his or her 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 608,000 by the total number of shares of Company Common Stock that
shall be issued and outstanding at the Effective Date.
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 $[ insert closing price of Zions Common Stock on the day before
execution of this Agreement ]. 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 or her Zions Bancorp Stock until he or she
exchanges his or her 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
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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 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 of 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, promptly after the Effective Date,
issue and deliver to Zions Bank the share certificates representing shares of
Zions Bancorp Stock and the cash to be paid 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 notice specifying the Effective Date and
notifying such holder to surrender his or her 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, corporation, partnership, trust,
government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
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 Teller 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
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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 transactions 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) termination 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VAL COR BANCORPORATION, INC.
Attest: By:
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Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer President and Chief
and Secretary Executive Officer
MOUNTAIN FINANCIAL HOLDING
COMPANY
Attest: By:
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Xxxxx X. Xxxx
President and Chief
Executive Officer
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)
State of Colorado )
) ss.
County of Denver )
)
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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.
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Notary Public
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)
State of Colorado )
) ss.
County of Teller )
)
--------------------------------------------
On this [________] day of [__________] 1998, before me personally
appeared Xxxxx X. Xxxx, to me known to be the President and Chief Executive
Officer of Mountain Financial 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
EXHIBIT II
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BANK MERGER AGREEMENT
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AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of [_______],
1998, between BANK COLORADO, NATIONAL ASSOCIATION ("BCNA"), a national banking
association organized under the laws of the United States, and MOUNTAIN NATIONAL
BANK (the "Bank"), a national banking association organized under the laws of
the United States. BCNA and the Bank are hereinafter sometimes individually
called a "Constituent Association" and collectively called the "Constituent
Associations."
RECITALS
BCNA 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 BCNA 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 national banking association organized under the laws of
the United States. 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.
BCNA and the Bank have entered into an Agreement and Plan of
Reorganization, dated May [_____], 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 BCNA (the "Merger") in accordance with this Agreement of
Merger (the "Agreement").
The Boards of Directors of each of BCNA 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 BCNA and the Bank, by resolutions duly
adopted, have approved the Plan of Reorganization. The Boards of Directors of
each of BCNA and the Bank, by resolutions duly adopted, have approved this
Agreement. The Boards of Directors of each of BCNA and the Bank have directed
that this Agreement, and authorization for the transactions contemplated hereby,
be submitted to stockholders of BCNA 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 BCNA. The Bank shall be merged with and
into BCNA 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 BCNA shall be a single association, which
shall be BCNA. BCNA is hereby designated as the surviving association in the
Merger and is hereinafter sometimes called the "Surviving Association."
(b) The separate existence of the Bank shall cease.
(c) The currently outstanding [ ] shares of common stock of
BCNA, each of $5.00 par value, will remain outstanding as shares of the $5.00
par value common stock of BCNA, 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 "Bank
Colorado, National Association."
(i) The Articles of Association of BCNA 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 BCNA as they exist immediately prior to the
Effective Date shall be the By-Laws of BCNA 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 BCNA and otherwise to carry out
the purposes of this Agreement.
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(b) If, at any time after the Effective Date, BCNA 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 BCNA its right, title, or interest in or under any of
the rights, properties, or assets of the Bank acquired or to be acquired by BCNA
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 BCNA 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 BCNA and otherwise to carry
out the purposes of this Agreement; and the proper officers and directors of
BCNA 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 Salt Lake County, Utah and Teller 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 transactions 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.
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2.6. Termination. This Agreement shall terminate and be abandoned upon
(i) termination of the Plan of Reorganization or (ii) the mutual consent of BCNA
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BANK COLORADO, NATIONAL ASSOCIATION
Attest: By:
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Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer President and Chief
and Secretary Executive Officer
MOUNTAIN NATIONAL BANK
Attest: By:
----------------------------- -------------------------------
Xxxxx X. Xxxx
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
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 Teller )
)
--------------------------------------------
On this [ ] day of [ ], 1998, before me personally appeared Xxxxx X.
Xxxx, to me known to be the President and Chief Executive Officer of Mountain
National 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
EXHIBIT III
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VOTING AGREEMENT
----------------
May [ ], 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 Mountain
Financial 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 4.1 of the Agreement and Plan of
Reorganization (the "Meeting"), and any adjournment thereof, the undersigned
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 individually 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
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, 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 Mountain
National Bank, from acting, in his or her capacity as a director or officer, as
the undersigned may determine to be appropriate in light of the obligations of
the undersigned as a director or officer. 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 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:
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Title:
---------------------------
Name of Shareholder:
Shares of Common Stock of Mountain Financial Holding Company
Beneficially Owned
As of May [__], 1998
Name(s) of Number of
Record Owner(s) Beneficial Ownership 1/ Shares
--------------- ----------------------- ------
-------------------------
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
agreement 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 VII
-----------
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into this
[___] day of [____], 1998, by and between [____] ("Executive") and 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 May [____], 1998 by and among Zions Bancorporation, a Utah corporation having
its principal office in Salt Lake City, Utah ("Zions Bancorp"), Val Cor
Bancorporation, Inc., a Colorado corporation having its principal office in
Cortez, Colorado, Resulting Bank, Mountain Financial Holding Company, a Colorado
corporation having its principal office in Woodland Park, Colorado, and Mountain
National Bank, a national banking association organized under the laws of the
United States (the "Bank"), provides that the Bank will be merged with and into
Resulting Bank;
WHEREAS, Executive is [_____________________________] 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 4.10 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 agreements 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 such 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) manage
his personal investments, and (iii) with the prior permission of the Board of
Directors 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.
2. Term of Employment.
(a) The term of this Agreement ("Term of Employment") shall be the
period commencing 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;
(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),
-2-
(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) 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 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; and
(ii) 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.
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 be at a rate of not less than $____2/ 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.
----------------------
Insert $95,000 for Xxxxx X. Xxxx, $83,000 for Xxxxxxx X. Oaks.
-3-
(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 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, medical
insurance, life insurance, disability insurance, and accidental death or
dismemberment insurance.
(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 December 31,
1997.
(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) Salary Continuation Agreement. Resulting Bank hereby assumes the
obligations of the Bank under the Executive Employee Salary Continuation
Agreement dated December 17, 1992 between the Bank and Executive. Executive
agrees that, for purposes of Section 3.5(b) of such agreement, any changes in
Executive's title, duties, responsibilities, or compensation as provided in this
Agreement or resulting from the merger of the Bank and Resulting Bank have been
made with Executive's consent.
[(g) Automobile. During the Term of Employment, Executive shall be
entitled to the use of the automobile owned by the Bank and used by Executive as
of January 1, 1998. Executive shall be responsible for all expenses of ownership
and use of such automobile, subject to reimbursement of expenses for business
use in accordance with section 3(e). Resulting Bank shall not be obligated to
replace such automobile upon the end of its useful life, whether by normal wear
and tear, accident, or otherwise.
(h) Country Club. During the Term of Employment, Resulting Bank shall
reimburse Executive for dues for one country club of Executive's choice.]3/
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
----------------------
Section 3(g) and (h) shall be included in Xxxxx X. Xxxx'x agreement only.
-4-
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 requirements,
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 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).
(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 Salt
Lake County, Utah, Teller County, Colorado, or elsewhere, 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.
-5-
(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 jurisdiction 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 counties of El Paso
and Teller, Colorado.
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.
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 or has been 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, which Resulting Bank has
incurred or 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 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:
-6-
If to Resulting Bank:
[________________________________]
[________________________________]
[________________________________]
[________________________________]
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:
[________________________________]
[________________________________]
[________________________________]
[________________________________]
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
obligations hereunder without the consent of the other party.
9. Governing Law. 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 Teller 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 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 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
-7-
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 containing 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 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.
-8-
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.
IN WITNESS WHEREOF, the parties hereto executed or caused this
Agreement to be executed as of the day and year first above written.
BANK COLORADO, NATIONAL ASSOCIATION
Attest: By:
----------------------- ---------------------------
[__________________________]
Witness:
-------------------- ----------------------------
-9-
EXHIBIT IX
----------
NON-COMPETITION AGREEMENT
-------------------------
NON-COMPETITION AGREEMENT
This NON-COMPETITION AGREEMENT (the "Agreement") made and entered into
this [_____] day of [_______], 1998, by and between XXXX XXXXXX ("Xxxxxx") and
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 May [____], 1998 by and among Zions Bancorporation, a Utah corporation having
its principal office in Salt Lake City, Utah ("Zions Bancorp"), Val Cor
Bancorporation, Inc., a Colorado corporation having its principal office in
Cortez, Colorado, Resulting Bank, Mountain Financial Holding Company, a Colorado
corporation having its principal office in Woodland Park, Colorado (the
"Company"), and Mountain National Bank, a national banking association organized
under the laws of the United States (the "Bank"), provides that the Bank will be
merged with and into Resulting Bank;
WHEREAS, Xxxxxx is the Chairman of the Board and a Director of both the
Company and the Bank and is also a significant shareholder of the Company and,
therefore, indirectly, a significant shareholder of the Bank;
WHEREAS, Xxxxxx desires to transfer his shares to Zions Bancorp and,
therefore, indirectly to Resulting Bank;
WHEREAS, the transfer of such shares will provide to Xxxxxx a
significant economic benefit which is of value to Xxxxxx;
WHEREAS, the personal involvement of Xxxxxx with the Bank as its
Chairman of the Board has added value to the Bank, for which Zions Bancorp is
compensating the shareholders of the Bank, including Xxxxxx, pursuant to the
Plan;
WHEREAS, Zions Bancorp and Resulting Bank desire that such shares be
transferred, provided that Xxxxxx agrees to refrain from competition with
Resulting Bank for the period prescribed herein;
WHEREAS, Xxxxxx and Resulting Bank are desirous of entering into the
Agreement for such periods and upon the terms and conditions set forth herein;
and
WHEREAS, this Agreement is an essential component of the Plan and
necessary to achieve the objectives of the transactions described in the Plan,
and section 4.14 of the Plan contemplates that Xxxxxx will enter into such an
agreement as a condition to the consummation of the transactions described
therein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter set forth, the parties agree as follows:
1. Non-Competition.
(a) Xxxxxx hereby agrees that from the Commencement Date until its
third anniversary, Xxxxxx 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 1(a); provided that the ownership
by Xxxxxx 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 Xxxxxx'x obligations under this section
1(a).
(b) Xxxxxx 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 1 (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 Salt
Lake County, Utah, Teller County, Colorado, or elsewhere, to restrain the
violation or breach thereof by Xxxxxx or any affiliates, agents, or any other
persons acting for or with Xxxxxx in any capacity whatsoever, and Xxxxxx submits
to the jurisdiction of such court in any such action.
(c) It is the desire and intent of the parties that the provisions of
this section 1 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this section 1 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 1 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 1.
(d) As used herein, "Market Area" shall mean the counties of El Paso
and Teller, Colorado.
2. 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:
-2-
If to Resulting Bank:
[________________________________]
[________________________________]
[________________________________]
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 Xxxxxx:
Xx. Xxxx Xxxxxx
[________________________________]
[________________________________]
[________________________________]
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
3. Assignment. Neither party may assign this Agreement or any rights or
obligations hereunder without the consent of the other party.
4. Governing Law. 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 Teller 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 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 transactions contemplated thereby brought
in the courts aforesaid.
5. Entire Agreement. This Agreement constitutes the entire
understanding between Resulting Bank and Xxxxxx relating to the subject matter
hereof. Any previous agreements or understandings between the parties hereto or
between Xxxxxx 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
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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.
6. 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 containing 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.
7. 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 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.
8. 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.
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9. 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.
10. 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.
IN WITNESS WHEREOF, the parties hereto executed or caused this
Agreement to be executed as of the day and year first above written.
BANK COLORADO, NATIONAL ASSOCIATION
Attest: By:
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XXXX XXXXXX
Witness:
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