Exhibit 99.10
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Option Agreement") made as of the 19th
day of November, 1996, between ZIONS BANCORPORATION ("Zions Bancorp"), a Utah
corporation having its principal office in Salt Lake City, Utah, and ASPEN
BANCSHARES, INC. (the "Company"), a Colorado corporation having its principal
office in Aspen, Colorado
W I T N E S S E T H T H A T :
WHEREAS, the Company and Zions Bancorp have simultaneously herewith entered
into an Agreement and Plan of Reorganization (the "Agreement and Plan of
Reorganization") pursuant to which the Company would merge with and into Zions
Bancorp (the "Merger") on the terms and subject to the conditions set forth in
the Agreement and Plan of Reorganization;
WHEREAS, Zions Bancorp has demanded as a condition to entering into the
Agreement and Plan of Reorganization that the Company xxxxx Xxxxx Bancorp an
option to purchase shares of Common Stock, par value $0.01 per share, of the
Company (the "Common Stock") on the terms set forth herein, and the Company has
agreed to enter into this Option Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and in the Agreement and Plan of Reorganization, the parties hereto
agree as follows:
1. Grant of Option. Subject to any adjustments pursuant to Section 5
hereof, the Company hereby grants to Zions Bancorp an irrevocable option (the
"Option") to purchase up to an aggregate 739,825 authorized but unissued shares
of Common Stock (the "Option Shares"), at a cash price of $18.875 per share (the
"Purchase Price").
2. Exercise of the Option; Term. Subject to Section 3 hereof, Zions Bancorp
may sell, assign, transfer, or exercise the Option, in whole or in part, at any
time or from time to time prior to the expiration of the Option (as set forth
below), except that the Option may be assigned or transferred, in whole or in
part, at any time, prior to the first occurrence of a Trigger Event (as defined
in Section 3 hereof) only to a Subsidiary. Where the context requires, and
unless otherwise specifically provided herein, the term "Zions Bancorp" shall
include any such holder of the Option. The term "Subsidiary" for purposes of
this Option Agreement shall mean a corporation 100 percent of the voting stock
of which is directly or indirectly owned by Zions Bancorp.
Subject to Section 3 hereof, Zions Bancorp may exercise the Option by
written notice to the Company specifying the number
of Option Shares to be purchased, the manner of payment for such Option Shares,
and a place and date for the closing not later than sixty business days nor
earlier than two business days after the date of such notice (the "Closing").
Notwithstanding the foregoing, to the extent the exercise of the Option would
require the prior consent or approval of the Board of Governors of the Federal
Reserve System (the "Board of Governors") or the Office of Thrift Supervision
(the "OTS") or consents or approvals of or filing with any other governmental
authority under applicable regulations, then staggered closings shall take place
as follows: A Closing shall take place on the date specified in the notice of
exercise with respect to that number of Option Shares the acquisition of which
by Zions Bancorp is permissible under such regulations without such prior
consent or approval, and a second Closing with respect to any such remaining
Option Shares as to which the Option has been exercised shall take place two
business days after notice from Zions Bancorp stating either (a) that receipt of
all required consents and approvals on terms and conditions satisfactory to
Zions Bancorp have been received, or (b) that any such governmental approvals
are no longer required.
Except for Section 9 hereof which shall terminate in accordance with the
provisions set forth therein, the Option and this Option Agreement shall
terminate upon the earliest of (a) the date twelve months after the first
occurrence of a Trigger Event, as defined in Section 3 hereof, (b) the date upon
which consummation of the Merger occurs, (c) the mutual agreement of the parties
hereto, (d) the date ninety days after the date that written certification of
the vote of the Company's shareholders is delivered to Zions Bancorp indicating
that the Company's shareholders have not approved the Merger under the
circumstances specified in Section 3(d) hereof, (e) the date of termination of
the Agreement and Plan of Reorganization by the Company pursuant to Section
10.2(c) of the Agreement and Plan of Reorganization, and (f) termination of the
Agreement and Plan of Reorganization pursuant to Section 10.2(a) of the
Agreement and Plan of Reorganization. If, after the occurrence of a Trigger
Event, the Option cannot be exercised by reason of any Suit (as defined in
Section 6(c)) commenced prior to the expiration of the Option as provided above,
the termination of this Option Agreement shall be extended until the earlier of
(a) the date five business days after such impediment to exercise shall have
been removed, (b) termination of the Option and the Option Agreement by the
Company pursuant to the last sentence of this Section 2, or (c) termination of
the Option and the Option Agreement by Zions Bancorp pursuant to Section 13
hereof.
If, at any time after the commencement of such a Suit, the Company in its
sole judgment determines that its failure to terminate the Option under this
Section 2 would be adverse to the interests of the Company or its shareholders,
the Company may terminate this Option Agreement and the Option by giving notice
of
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such termination to Zions Bancorp and making a cash payment to Zions Bancorp in
the amount of $2,500,000 payable by delivery of a bank check payable to the
order of Zions Bancorp.
3. Conditions to Exercise of Option. Except for any assignment or transfer
of the Option in whole or in part to a Subsidiary as provided in Section 2
hereof, Zions Bancorp may sell, assign, transfer or exercise the Option, in
whole or in part, only if any one or more of the following events (the "Trigger
Events") shall have occurred:
(a) The Board of Directors of the Company shall have (i) authorized
the execution of an agreement with any person or group of persons other than
Zions Bancorp or a Subsidiary ("Third Party") pursuant to which such Third Party
will acquire, merge or consolidate with, or acquire all or substantially all of
the assets of the Company (or engage in a substantially similar transaction),
(ii) supported an offer or proposal by any Third Party to acquire, merge or
consolidate with the Company, or acquire all or substantially all of the assets
of the Company (or to engage in a substantially similar transaction), or (iii)
recommended to the shareholders of the Company that they not approve the
Agreement and Plan of Reorganization; or
(b) the termination of the Agreement and Plan of Reorganization by
Zions Bancorp pursuant to Section 10.2(b) of the Agreement and Plan of
Reorganization due to a willful breach by the Company; or
(c) the receipt by a Third Party of all required approvals of all
governmental authorities to acquire beneficial ownership of more than 25 percent
of the Common Stock of the Company; or
(d) upon the public announcement by any Third Party with financial
ability of a bona fide proposal or intention to in any manner acquire control of
the Company and, thereafter, if such proposal has not been withdrawn at least
twenty days prior to the meeting of shareholders of the Company called to vote
on the Agreement and Plan of Reorganization, the Company's shareholders fail to
approve the Agreement and Plan of Reorganization by the vote required by
applicable law at the meeting of shareholders called for such purpose.
Notwithstanding the foregoing, the Option may only be exercised (a) with
respect to that number of Option Shares the acquisition of which would be
permissible without the consent or approval of the Board of Governors or the OTS
or consent or approval of or filings with any other governmental authority,
unless all applicable and required governmental approvals have been obtained
with respect to such exercise or if such exercise would not violate any
applicable regulatory restrictions, and (b) if, at
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the time of exercise Zions Bancorp is not in material violation or breach of or
in default under any material provisions of the Agreement and Plan of
Reorganization.
The Company shall promptly give notice to Zions Bancorp of the occurrence
of a Trigger Event, it being understood that the giving of such notice by the
Company shall not be a condition to the right of Zions Bancorp to exercise the
Option. As used in this Section 3, "person," "group of persons," and "beneficial
ownership" shall have the meanings conferred thereon by Section 13(d) of the
Securities Exchange Act and the regulations promulgated thereunder.
4. Payment of Purchase Price and Delivery of Certificates. At each Closing,
(a) against delivery of the Option Shares to be purchased, Zions Bancorp shall
pay to the Company the aggregate purchase price for the Option Shares being
purchased at such Closing by delivery to the Company of a bank check payable to
the order of the Company in such amount or, if mutually agreed, by wire transfer
of funds in such amount to an account designated in writing by the Company, and
(b) the Company shall deliver to Zions Bancorp a certificate or certificates
representing the number of Option Shares so purchased, free and clear of all
liens, claims, charges, and encumbrances of any kind or nature whatsoever, in
the denominations and in the name designated by Zions Bancorp in its notice of
exercise and which shall bear the following legend until such time as the legend
is no longer required by applicable law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), OR THE SECURITIES LAWS OF ANY
JURISDICTION. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TOWARD DISTRIBUTION OR RESALE AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH
SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT OR OTHER APPLICABLE LAWS. THE
SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS OF A STOCK OPTION
AGREEMENT DATED NOVEMBER 19, 1996.
5. Antidilution Adjustments. Upon any change in the number of issued and
outstanding shares of Common Stock by reason of any stock dividend, split-up,
merger, recapitalization, combination, conversion, exchange of shares, or the
like or upon the issuance of any shares of Common Stock pursuant to the exercise
of any options (other than the Option), warrants, convertible securities, and
other rights to purchase Common Stock, the number and kind of shares subject to
the Option and the Purchase Price
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shall be adjusted so that the number of shares of Common Stock to be issued upon
the exercise of the Option shall equal the same proportion of the issued and
outstanding Common Stock (assuming the Option Shares have been issued) as the
original number of Option Shares bears to the outstanding shares of Common Stock
as of the date hereof (assuming the Option Shares have been issued), and such
additional shares shall be treated as "Option Shares." If, on or after the date
hereof, the Company should declare or pay any cash or stock dividend (other than
regular quarterly cash dividends not exceeding $0.05 per share) or other
distribution or issue any rights with respect to the Common Stock, payable or
distributable to shareholders of record on a date prior to the transfer to the
name of Zions Bancorp or its nominee on the Company's stock transfer records of
the Option Shares, and the Option is exercised, then (a) the exercise price per
Option Share will be reduced by the amount of any such cash dividend or cash
distribution, and (b) the whole of any such non-cash dividend, distribution, or
right which would have been payable with respect to each Option Share purchased
by Zions Bancorp if such shares were outstanding on the record date for such
distribution will be promptly remitted and transferred by the Company to Zions
Bancorp. Upon exercise of the Option, to the extent consistent with law, pending
such remittance, Zions Bancorp will be entitled to all rights and privileges as
owner of any such non-cash dividend, distribution, or right with respect to each
Option Share purchased.
6. Certain Agreements of the Company.
(a) The Company shall not engage in any action or omit to take any
action which could have the effect of preventing or disabling the Company from
delivering the Option Shares to Zions Bancorp upon exercise of the Option or
otherwise performing its obligations under this Option Agreement. The Company
shall at all times continue to reserve for issuance all of the Option Shares and
maintain sufficient authorized but unissued shares of Common Stock so that the
Option may be exercised without additional authorization of Common Stock after
giving effect to all other options, warrants, convertible securities, and other
rights to purchase Common Stock. The Option Shares to be issued upon due
exercise, in whole or in part, of the Option, including all additional shares
that may be issued pursuant to Section 6 hereof, when paid for as provided
herein, will be duly authorized, validly issued, fully paid and nonassessable,
and not subject to preemptive rights.
(b) Neither the execution and delivery of this Option Agreement by the
Company nor the consummation by the Company of the transactions contemplated
hereby will (i) conflict with or result in any breach or violation of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or give rise to any right of
termination, cancellation, or acceleration of the performance required by, or
result in the creation of any lien or other
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encumbrance upon any of the properties or assets of the Company or any of its
subsidiaries under any of the terms, conditions, or provisions of (A) their
respective articles of incorporation and by-laws, (B) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement, or other instrument or
obligation to which the Company or any of its subsidiaries is a party or to
which they or any of their properties or assets are subject, or (C) violate any
writ, judgment, injunction, decree, ruling, order, statute, rule, policy,
guideline, or regulation applicable to the Company or any of its subsidiaries,
except for such violations, conflicts, breaches, defaults, terminations,
cancellations, accelerations or creations of liens or other encumbrances which,
individually or in the aggregate, will not have a material adverse effect on the
financial condition, properties, business, results of operations, or prospects
of the Company and its subsidiaries, taken as a whole, or (ii) require any
consent, approval, authorization, or permit of or from, or filing with or
notification to, any court, or any regulatory or administrative agency,
department, or commission of any federal, state, local or foreign government,
except (A) the Board of Governors, with respect to the exercise of more than 5
percent of the Option Shares, or (B) the OTS, with respect to the exercise of
more than 10 percent of the Option Shares, or (C) consents, approvals,
authorizations, permits, filings or notifications which, if not obtained or made
will not, individually or in the aggregate, have a material adverse effect on
the business, financial condition, results of operations or prospects of the
Company and its subsidiaries, taken as a whole.
(c) In the event any claim, action, suit, investigation, or other
proceeding by any governmental body or other person is commenced which questions
the validity or legality of this Option Agreement or any of the other
transactions contemplated hereby or seeks damages in connection therewith
(collectively, a "Suit"), the parties agree to cooperate and use all reasonable
efforts to defend against such Suit and, if an injunction or other similar order
is issued in any such Suit, to use all reasonable efforts to have such
injunction or other order lifted, and to cooperate reasonably regarding any
other impediment to the consummation of the transactions contemplated by this
Option Agreement.
7. Investment Intent.
(a) In connection with the issuance to Zions Bancorp of the Option
Shares upon exercise of the Option, Zions Bancorp hereby represents to the
Company that the Option Shares are being acquired by Zions Bancorp for its own
account and not for the account or beneficial interest of any other person and
that the Option Shares are not being acquired with a view to or for resale in
connection with any distribution within the meaning of any applicable securities
laws that would be in violation of such securities laws. Zions Bancorp
understands that the Option Shares
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have not been registered under applicable securities laws and as such, must be
held indefinitely unless they are subsequently registered under the securities
laws or an exemption from registration thereunder is available. Zions Bancorp is
also aware that any sales which may be in reliance upon the securities laws may
be made only in limited amounts after the required holding periods, and
otherwise in accordance with the terms and conditions of the securities laws.
(b) Zions Bancorp covenants and agrees that it will not transfer the
Option unless such transfer is in compliance with applicable federal and state
securities laws.
(c) Zions Bancorp covenants and agrees that, following the third
anniversary of a Trigger Event, it will not sell, transfer, or convey to any
person or affiliate of such person (except an affiliate of Zions Bancorp or the
Company) shares of Common Stock which (together with shares of Common Stock
previously sold by Zions Bancorp to such person or affiliate) exceed 2 per cent
of the issued and outstanding Common Stock, provided that this subparagraph (c)
shall not apply if any person (other than Zions Bancorp or its affiliates) has
outstanding a bona fide proposal or intention to acquire the Company in any
manner, which proposal or intention has not been withdrawn.
8. Specific Performance. The parties hereto agree that irreparable harm
would occur if any of the provisions of this Option Agreement were not performed
by the Company in accordance with their specific terms or conditions or were
otherwise breached and that money damages are an inadequate remedy for breach of
this Option Agreement because of the difficulty of ascertaining the amount of
damage that will be suffered by Zions Bancorp in the event that this Option
Agreement is not performed in accordance with its terms or conditions or is
otherwise breached. It is accordingly agreed that Zions Bancorp shall be
entitled to a preliminary and permanent injunction or injunctions to prevent
breaches of this Option Agreement by the Company and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which it is
entitled at law or in equity.
9. Registration of Shares.
9.1 Registration Upon Request. At any time after the Option may be
exercised or sold, but not more frequently than once every six months, Zions
Bancorp may make a written request for registration, in which event the Company
shall use its best efforts to prepare, file, and keep current a registration
statement on a form of general use under the Securities Act of 1933, as amended
(the "Securities Act"), in order to permit the sale or other disposition of the
Option Shares, and shall use its best efforts to
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cause such registration statement to become effective and remain current for a
period of ninety days; provided that Zions Bancorp shall have the right to
effect only two such registrations; and provided further, that each such
registration shall relate to not less than 100,000 shares of Common Stock
(assuming for this purpose the exercise of any Option to be covered by such
registration statement). Without the written consent of Zions Bancorp, neither
the Company nor any other holder of securities of the Company may include any
securities in such registration.
9.2 "Piggyback Registration." On or after the occurrence of a Trigger
Event, each time the Company shall determine to proceed with the actual
preparation and filing of a registration statement under the Securities Act in
connection with the proposed offer and sale for money of any of its securities
(other than in connection with a dividend reinvestment, employee stock purchase,
stock option or similar plan, or a registration statement on Form S-4 or
comparable form), by it or any of its shareholders, the Company will give
written notice of its determination to Zions Bancorp. Upon the written request
of Zions Bancorp given within ten days after receipt of any such notice from the
Company, the Company will, except as herein provided, cause all securities which
Zions Bancorp shall request be included in the registration statement
contemplated by this Section 9.2 to be included in such registration statement;
provided that nothing herein shall prevent the Company from, at any time,
abandoning or delaying any registration; provided further that if the Company
determines not to proceed with a registration after the registration statement
has been filed with the Securities and Exchange Commission (the "Commission")
and the Company's decision not to proceed is primarily based upon the
anticipated public offering price of the securities to be sold by the Company,
the Company shall promptly complete the registration for the benefit of Zions
Bancorp if Zions Bancorp agrees to bear all incremental expenses incurred by the
Company as the result of such registration after the Company has decided not to
proceed. Zions Bancorp shall be entitled to a maximum of three registrations
pursuant to this Section 9.2. If any registration pursuant to this section shall
be underwritten in whole or in part, the Company may require that any securities
requested for inclusion pursuant to this section be included in the underwriting
on the same terms and conditions as the securities otherwise being sold through
the underwriters. If the securities requested for inclusion pursuant to this
paragraph would constitute more than 25 percent of the total number of
securities to be included in a proposed underwritten public offering (based, in
the case of the Option, on the number of shares of Common Stock underlying such
Option) and if in the good faith judgment of the managing underwriter of such
public offering the inclusion of all of such securities would interfere with the
successful marketing of the securities offered by the Company, the number of
securities otherwise to be included in the underwritten public offering may be
reduced; provided that after any such
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required reduction in the securities to be included in such offering for the
account of Zions Bancorp shall constitute at least 25 percent of the total
number of securities to be included in such offering.
9.3 Registration Procedures. If and whenever the Company is required
by the provisions of Section 9.1 or 9.2 hereof to effect the registration of its
securities under the Securities Act, the Company will:
(a) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement current;
(b) furnish to Zions Bancorp and to the underwriters of the
securities being registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus, and such other documents as
Zions Bancorp or such underwriters may reasonably request in order to facilitate
the public offering of such securities;
(c) use its best efforts to register or qualify the securities
covered by such registration statement under such state securities or blue sky
laws of such jurisdictions as Zions Bancorp or such underwriters may reasonably
request; provided that the Company shall not be required by virtue hereof to
submit to the general jurisdiction of any state;
(d) notify Zions Bancorp, after the Company shall receive notice
thereof, of the time when such registration statement has become effective or
supplement or amendment to any prospectus forming a part of such registration
statement has been filed;
(e) notify Zions Bancorp of any request by the Commission for the
amending or supplementing of such registration statement or prospectus or for
additional information;
(f) prepare and file with the Commission, upon the request of
Zions Bancorp, any amendment or supplement to such registration statement or
prospectus which, in the opinion of counsel for Zions Bancorp and the Company,
are required under the Securities Act or the rules and regulations thereunder in
connection with the distribution of the securities by Zions Bancorp;
(g) prepare and file with the Commission such amendment or
supplement to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities Act or other
applicable law, any event shall have occurred as the result of
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which such prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(h) advise Zions Bancorp, after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued; and
(i) at the request of Zions Bancorp, furnish on the date or dates
provided for in the underwriting agreement: (A) an opinion or opinions of the
counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to Zions Bancorp, covering such matters as
such underwriters and Zions Bancorp may reasonably request and are customarily
covered by issuer's counsel at that time; and (B) a letter or letters from the
independent certified public accountants of the Company, addressed to the
underwriters and to Zions Bancorp, covering such matters as such underwriters or
Zions Bancorp may reasonably request, in which letter(s) such accountants shall
state (without limiting the generality of the foregoing) that they are
independent certified public accountants within the meaning of the Securities
Act and that, in the opinion of such accountants, the financial statements and
other financial data of the Company included in the registration statement or
any amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act.
Each and every action required to be taken by the Company under
Sections 9.1, 9.2, or 9.3 hereof shall be taken by the Company as promptly as
practicable after the obligation to take any such action arises (except to the
extent that a specific time period is provided herein).
9.4 Fees and Expenses.
(a) With respect to the registration requested pursuant to
Section 9.1 hereof, Zions Bancorp will bear 50 percent of the reasonable portion
of the following fees, costs, and expenses, and the Company will bear the
remainder of the following fees, costs, and expenses: all registration, filing
and NASD fees, printing and engraving expenses, fees and disbursements of
counsel and accountants for the Company, and all legal fees and disbursements
and other expenses of complying with state securities or blue sky laws of any
jurisdictions in which the securities to be offered are to be registered or
qualified. Fees and disbursements of counsel and accountants for Zions Bancorp,
underwriting discounts and commissions, and transfer taxes for Zions Bancorp and
any other
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expenses incurred by Zions Bancorp not expressly included above shall be borne
by Zions Bancorp.
(b) With respect to the registration requested pursuant to
Section 9.2 hereof, the Company shall bear the following fees, costs and
expenses: all registration, filing and NASD fees, printing and engraving
expenses, fees and disbursements of counsel and accountants for the Company, and
all legal fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified. Fees and disbursements of counsel and
accountants for Zions Bancorp, underwriting discounts and commissions, and
transfer taxes for Zions Bancorp and any other expenses incurred by Zions
Bancorp not expressly included above shall be borne by Zions Bancorp.
9.5 Termination. The rights provided in this Section 9 shall expire
upon the third anniversary following the date of the exercise of the Option.
10. Further Assurances.
(a) Upon each exercise of the Option, the Company and Zions Bancorp
will execute and deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate the transactions
contemplated hereby.
(b) The Company shall take all necessary action to obtain or to
cooperate with Zions Bancorp in obtaining all necessary regulatory consents,
approvals, waivers, or other action (whether regulatory, corporate, or other) to
permit the acquisition of any or all Option Shares by Zions Bancorp.
11. Expenses. Except as otherwise provided in Section 9 hereof, all costs
and expenses incurred in connection with this Option Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
12. Parties In Interest. Except as otherwise expressly provided herein,
this Option Agreement is binding upon and is solely for the benefit of the
parties hereto and their respective successors, legal representatives, and
assigns.
13. Termination Fee. If (a) Zions Bancorp's right to exercise the Option is
judicially determined to be unenforceable following the occurrence of a Trigger
Event, or (b) if the Company shall materially breach its obligations set forth
in Section 6(c), then upon notice to the Company from Zions Bancorp, the Company
shall pay Zions Bancorp $2,500,000 in cash payable by delivery of a bank check
payable to the order of Zions Bancorp, and this Option Agreement and Option
shall terminate; provided that in no event
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shall the Company be obligated to make any such payment to a person other than
Zions Bancorp.
14. Certain Repurchases.
(a) Company Call. At any time following the date which is 540 days
after the Option becomes exercisable pursuant to Section 2 (hereinafter the
"Repurchase Period"), the Company shall have the right to repurchase from Zions
Bancorp all or such portion (as shall be specified by the Company) of (i) the
Option at the price set forth in subparagraph (1) below and/or (ii) the Option
Shares purchased by Zions Bancorp pursuant to Section 2 at the price set forth
in subparagraph (2) below:
(1) The difference between (i) the Market/Tender Offer Price
for shares of Company Common Stock as of the date the Company gives notice of
its intent to exercise its rights under this Section 14(a) and (ii) the Purchase
Price, multiplied by the number of Option Shares purchasable pursuant to the
Option (or portion thereof with respect to which the Company is exercising its
rights under this Section 14(a)), but only if the Market/Tender Offer Price is
greater than $19.50.
(2) The Purchase Price paid by Zions Bancorp for the Option
Shares acquired pursuant to the Option plus the difference between the
Market/Tender Offer Price and the Purchase Price (but only if the Market/Tender
Offer Price is greater than $19.50) multiplied by the number of Option Shares so
purchased.
(b) Payment and Redelivery of Option or Option Shares. If the Company
exercises its rights under this Section 14, the Company shall, within ten
business days after giving notice of such exercise, pay the required amount to
Zions Bancorp in immediately available funds; at the same time, Zions Bancorp
shall surrender to the Company the Option and/or the certificates evidencing the
Option Shares purchased by Zions Bancorp pursuant thereto; and Zions Bancorp
shall warrant that it owns such shares and that such shares are then free and
clear of all liens, claims, damages, charges, and encumbrances of any kind or
nature whatsoever.
(c) Market/Tender Offer Price. As used in this Section 14,
"Market/Tender Offer Price" shall mean the higher of (i) the price per share
offered as of such date pursuant to any tender or exchange offer or other
takeover proposal that was made prior to such date and not terminated or
withdrawn as of such date or (ii) the mean (unrounded) of the high and the low
reported sales prices or, if no such reported sales take place, the average of
the closing bid and asked prices of a share of Company Common Stock in the
over-the-counter markets as such prices are reported by the automated quotation
system of the National Association of Securities Dealers, Inc., or in the
absence thereof by such other source
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upon which Zions Bancorp and the Company shall mutually agree, as averaged for
the ten consecutive trading days immediately preceding such date or (iii)
$19.50.
(d) Condition to Company Call. The right of the Company to repurchase
as provided in section 14(a) hereof shall not apply if on the date 540 days
after the Option becomes exercisable (1) the Company shall have outstanding (i)
its Board's authorization of the execution of an agreement with a Third Party
pursuant to which such Third Party will acquire, merge or consolidate with, or
acquire all or substantially all of the assets of the Company (or engage in a
substantially similar transaction), (ii) an offer or proposal by a Third Party
supported by its Board to acquire, merge or consolidate with the Company, or
acquire all or substantially all of the assets of the Company (or to engage in a
substantially similar transaction), (iii) a recommendation by its Board to the
Company's shareholders that they approve the agreement or proposal of a Third
Party, or (2) a bona fide proposal or intention to acquire the Company in any
manner is outstanding, which proposal or intention has not been withdrawn.
15. Representations and Warranties of Zions Bancorp. Zions Bancorp
represents to the Company that:
(a) Zions Bancorp is a corporation duly organized, validly existing,
and in good standing under the laws of Utah and has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder.
(b) The execution and delivery of this Agreement by Zions Bancorp and
the consummation by Zions Bancorp of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Zions
Bancorp and no other corporate proceedings on the part of Zions Bancorp are
necessary to authorize this Agreement or any of the transactions contemplated
hereby.
(c) This Agreement has been duly executed and delivered by Zions
Bancorp and constitutes a valid and binding obligation of Zions Bancorp and is
enforceable against Zions Bancorp in accordance with its terms except as may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium,
and other laws affecting the enforcement of creditors rights generally and by
general equity principles and except as Section 9 may be limited by federal or
state securities laws.
(d) The execution and delivery of this Agreement by Zions Bancorp does
not, and the performance of this Agreement by Zions Bancorp shall not (i)
violate the certificate of incorporation or by-laws of Zions Bancorp, (ii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time, or both, would become a default) under, give rise to any
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rights of termination, amendment, acceleration, or cancellation of, or result in
the creation of a lien or encumbrance on any of the property or assets of Zions
Bancorp pursuant to any note, bond, mortgage, indenture, contract, agreement,
lease, license, or other instrument or obligation to which Zions Bancorp is a
party or by which Zions Bancorp or any of its property is bound or affected
other than such breaches, defaults (or rights of termination, amendment,
acceleration, or cancellation), liens or encumbrances which individually or in
the aggregate do not or would not materially impair the performance by Zions
Bancorp of its obligations hereunder, subject to the obtaining of applicable
regulatory approvals and consents, if any.
(e) The execution and delivery of this Agreement by Zions Bancorp does
not, and the performance of this Agreement by Zions Bancorp shall not, require
any consent, approval, authorization, or permit of, or filing with or
notification to, any governmental or regulatory authority except for
registration and qualification under applicable federal and state securities
laws.
16. Representations and Warranties to Survive Delivery. All representations
and warranties contained in this Option Agreement, or contained in certificates
of officers of the Company submitted pursuant to this Option Agreement, shall
survive delivery of and payment for the Option Shares.
17. 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.
18. Entire Agreement. This Agreement sets forth the entire understanding of
the parties hereto with respect to their commitments to each other and their
undertakings vis-a-vis each other on the subject matter hereof. Any previous
agreements or understandings between the parties regarding the subject matter
hereof are merged into and superseded by this Agreement. Nothing in this
Agreement express or implied is intended or shall be construed to confer upon or
to give any person, other than Zions Bancorp and the Company and their
respective shareholders, any rights or remedies under or by reason of this
Agreement.
19. 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
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thereof, association, unincorporated organization, or any other entity.
20. 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 Zions Bancorp:
Zions Bancorporation
0000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
With a required copy to:
Xxxxx X. Xxxxxx, Esq.
Metzger, Hollis, Xxxxxx & Xxxxxx
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, D. C. 20005
If to the Company:
Aspen Bancshares, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Israel
President and Chief Executive Officer
With a required copies to:
Xxxxxxx X. Xxxxx, III, Esq.
Rothgerber, Appel, Powers & Xxxxxxx
Suite 3000, One Xxxxx Center
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Xxxxxxxx X. Xxxxxxxx, Esq.
Rothgerber, Appel, Powers & Xxxxxxx
Suite 3000, One Xxxxx Center
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
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All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
21. 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, to be the proper jurisdiction and venue
for any suit or action arising out of this Agreement. Each of the parties
consents to personal jurisdiction in such venue 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. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ZIONS BANCORPORATION
Attest: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx
President and
Chief Executive Officer
ASPEN BANCSHARES, INC.
Attest: /s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Israel
------------------------- ---------------------------------
Xxxxxxx X. Israel
President and
Chief Executive Officer
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----------------------
)
State of Nevada )
) ss.
County of Xxxxx )
)
----------------------
On this eighteenth day of November, 1996, before me personally appeared
Xxxxxx X. Xxxxxxx, to me known to be the President and Chief Executive Officer
of Zions Bancorporation, 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.
/s/ Xxxxx Xxx Xxxxxxxx
-----------------------------------
Notary Public
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----------------------
)
State of Colorado )
) ss.
County of Pitkin )
)
----------------------
On this nineteenth day of November, 1996, before me personally appeared
Xxxxxxx X. Israel, to me known to be the President and Chief Executive Officer
of Aspen Bancshares, 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.
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Notary Public
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