SHAREHOLDER'S AGREEMENT
THIS AGREEMENT is made this _____ day of _________, 1998, by and between
_____________, herein referred to as "Shareholder", and FIRST INTERSTATE
BANCSYSTEM, INC., a Montana corporation, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxx,
Xxxxxxx 00000, herein referred to as the "Corporation".
W I T N E S S E T H :
A. Shareholder owns shares of capital stock of the Corporation, which
stock, together with any additional stock hereafter acquired by Shareholder,
is herein referred to as the "Shares".
B. The Corporation desires to restrict the issuance and holding of its
corporate stock to officers, directors and employees of the Corporation or
any of its subsidiaries, or to fiduciaries for the benefit of any such
persons, or to charities. Such persons' status as director, officer or
employee of the Corporation shall be herein referred to as the "Shareholders'
Relationship with the Corporation". This Shareholder's Agreement does not
apply to the Corporation's stock held in the Savings Plan.
C. The Corporation and Shareholder desire to obligate each other to
sell and purchase shares under specified circumstances.
NOW, THEREFORE, in consideration of the above facts and the
Shareholder's and the Corporation's mutual promises herein, the Shareholder
and the Corporation agree as follows:
1. RESTRICTION ON TRANSFER OR PLEDGE OF SHARES. Except as otherwise
provided in this Agreement or as agreed upon in writing by the Shareholder
and the Corporation, Shareholder shall not transfer or permit to be
transferred, whether voluntarily, involuntarily or by operation of law,
resulting from death or otherwise, any or all of the Shares now owned or
hereafter acquired by Shareholder, and any attempted transfer in violation of
this Agreement shall be void. Shareholder shall not encumber or use any
Shares as security for a loan, except upon the written consent of the
Corporation.
2. TRANSFER OF SHARES TO CHARITY. A Shareholder may transfer Shares to
any organization described in Section 170(b)(1)(A) of the Internal Revenue
Code of 1986, as now or hereafter amended (the "Code"), a gift to which
qualifies as a charitable deduction under Sections 170(c), 2055(a), or
2522(a) of the Code (a "Charity"). Any transfer of Shares to a Charity shall
be subject to the Corporation's option, exercisable by action of the Board of
Directors of the Corporation, to purchase all or any portion of the Shares
held by a Charity at the purchase price set forth in this Agreement, which
may be exercised by written notice from the Corporation to the Charity at any
time.
3. PURCHASE OPTION UPON BONA FIDE SALE. If a Shareholder intends to
sell any Shares to any person other than the Corporation, Shareholder shall
give ninety (90) days' written notice to the Corporation of the intention to
sell Shares. The notice, in addition to stating the fact of the intention to
sell Shares, shall state (i) the
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number of Shares to be sold, (ii) the name and address of the proposed
purchaser, (iii) the amount of the consideration and the other terms of the
sale. At the request of the Corporation, Shareholder shall demonstrate to
the reasonable satisfaction of the Corporation that the intended sale is bona
fide. Within ninety (90) days after the Corporation's receipt of the notice
of intention to sell Shares, the Corporation may exercise an option to
purchase all but not less than all of the Shares proposed to be sold.
4. PURCHASE OPTION UPON DEATH. Upon Shareholder's death, the
Corporation, within ninety (90) days after the appointment of a personal
representative for the deceased Shareholder's estate, for which written
notice must be given by said personal representative within ten (10) days
after appointment, may exercise an option to purchase all but not less than
all of the deceased Shareholder's Shares from the personal representative of
his or her estate. Shareholder, by signing this Agreement, directs his or her
personal representatives to open Shareholder's estate promptly in the court
of proper jurisdiction and execute, procure and deliver all documents,
including, but not limited to appropriate order of such court and estate and
inheritance tax waivers, as shall be required to effectuate the purposes of
this Agreement.
5. PURCHASE OPTION UPON INVOLUNTARY TRANSFER. If other than by reason
of Shareholder's death, Shares are transferred by operation of law to any
person other than the Corporation (such as but not limited to a shareholder's
trustee in bankruptcy, a purchaser at any creditor's or court sale or the
guardian or conservator of an incompetent shareholder), Shareholder shall
immediately give written notice to the Corporation of such transfer. The
Corporation, within ninety (90) days of the Corporation's receipt of actual
notice of the transfer, may exercise an option to purchase all but not less
than all of the Shares so transferred from the transferee of the Shares. Any
transfer of the Shares by operation of law shall be subject to this right and
option of the Corporation to purchase the Shares.
6. PURCHASE OPTION UPON TERMINATION OF RELATIONSHIP WITH THE
CORPORATION. Upon the termination of Shareholder's Relationship with the
Corporation, such termination being for any reason whatsoever, including but
not limited to the voluntary resignation of Shareholder, the Corporation,
within ninety (90) days after the date of such termination, may exercise an
option to purchase all but not less than all of the Shares owned by the
terminated Shareholder at the time of such termination.
7. PURCHASE OPTION UPON DISABILITY. If Shareholder shall become totally
disabled, the Corporation, within ninety (90) days after the date of such
total disability, may exercise an option to purchase all but not less than
all of the Shares owned by the disabled Shareholder at the time of the
commencement of his or her total disability. A shareholder shall be deemed
totally disabled within the meaning of this paragraph 7 if as a result of
sickness, accident or injury, he or she becomes wholly and continuously
unable to perform his or her duties for a period of six consecutive months,
and his or her disability shall be deemed to have commenced at the end of
said six-month period.
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8. GENERAL CORPORATE PURCHASE OPTION. Upon determination by the
Corporation's Board of Directors that the number of Shares held by
Shareholder is excessive in view of the Corporation's policy that the level
of a shareholder's stock ownership should reflect certain factors, including
but not limited to (a) the relative contribution of Shareholder to the
economic performance of the Corporation, (b) the effort being put forth by
Shareholder, and (c) the level of responsibility of Shareholder, the
Corporation may exercise an option to purchase a portion of Shareholder's
Shares sufficient to decrease the number of Shares owned by the Shareholder
to an amount that the Board of Directors, in its sole discretion, believes is
appropriate. The Corporation shall not exercise said option in anticipation
of a sale of the Corporation or a majority of the Corporation's stock and the
Corporation agrees to exercise said option in a nondiscriminatory fashion.
The number of Shares that the Corporation can purchase from Shareholder is
limited to the stock obtained by the Shareholder after January 1, 1994.
9. EXERCISE OF OPTION. The Corporation shall exercise any of the Options
granted in paragraphs 3, 4, 5, 6, or 7 by delivering written notice of its
exercise of the option, within the time provided in the applicable paragraph,
to the Shareholder in the case of a paragraph 3 option, to the personal
representative of Shareholder's estate in the case of a paragraph 4 option,
to the transferee in the case of a paragraph 5 option, to the terminated
Shareholder in the case of a paragraph 6 option, and to the disabled
shareholder in the case of a paragraph 7 option. The Corporation shall
exercise the option granted in paragraph 8 by delivering written notice of
its exercise of the option, specifying the number of Shares to be purchased,
to the Shareholder.
10. EFFECT OF NON-EXERCISE OF OPTIONS. If the purchase options are
forfeited or not exercised in compliance with the terms of this Agreement,
then the Shares to which the option applied shall be unrestricted and no
longer subject to the terms of this Agreement.
11. THE PURCHASE PRICE. The purchase price for each Share purchased
pursuant to any of the options granted in this Agreement shall be the
appraised value of a minority Share as stated in the most recent quarterly
appraisal available to the Corporation. The Corporation's Shares shall be
appraised as of the last day of each calendar quarter by an unaffiliated firm
qualified to make such an appraisal, as determined by the Corporation's Board
of Directors. The expense of determining the appraised value shall be borne
by the Corporation. The appraisal of the Shares delivered to any department
division or subsidiary of the Corporation may be utilized under this
paragraph.
The Corporation may, at its option, withhold any amount that the
Shareholder owes the Corporation or its subsidiaries from the amount of the
Purchase Price payable to Shareholder and apply said amount to such
indebtedness.
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12. PAYMENT OF THE PURCHASE PRICE.
12.1 PAYMENT TERMS. The purchase price for Shares to be purchased by
the Corporation pursuant to this Agreement shall be paid either in cash at
closing or, at Shareholder's (including the personal representative of a
deceased Shareholder) election, in installments as follows:
(a) 25% of the purchase price at the closing.
(b) The balance of the purchase price in three (3) annual equal
payments of principal plus accrued interest thereon at a fixed
annual rate equal to the 5 year Treasury Note rate at the date
of closing plus one percent, the first installment to be paid one
year after the closing, and the remaining installments each year
thereafter.
The purchase price pursuant to exercise of the paragraph 5 option shall be
paid in full in cash at the closing.
12.2 PROMISSORY NOTE ON DEFERRED PORTION. The deferred portion of the
purchase price, if any, shall be evidenced by the promissory note of the
Corporation made payable to the order of the Shareholder. The Corporation
note shall be substantially in the form of that set forth in Exhibit A.
13. THE CLOSING.
13.1 TIME AND PLACE. Unless otherwise agreed by the parties, the
closing of the sale and purchase of Shares, as provided in this Agreement,
shall take place at the general offices of the Corporation. In the case of a
purchase of Shares from a deceased Shareholder's estate under paragraph 4,
the closing shall take place within one hundred twenty (120) days after the
appointment of a personal representative for the deceased Shareholder's
estate. In the case of a purchase of Shares under paragraphs 3, 5, 6, 7, or
8, the closing shall take place ten (10) days after the delivery to the
Shareholder of written notice by the Corporation of its exercise of the
option to purchase the Shareholder's Shares.
13.2 DOCUMENTS. At the closing of the sale and purchase, the
Shareholder and the Corporation shall execute and immediately deliver to each
other the various documents which shall be required to carry out their
undertakings hereunder, including but not limited to the payment of cash, the
execution and delivery of notes and the assignment and delivery of stock
certificates free and clear of all taxes, debts, claims, judgments, liens or
encumbrances whatsoever.
14. LEGEND ON CERTIFICATES. All Shares now or hereafter owned by
Shareholder shall be subject to the provisions of this Agreement and
Shareholder, and his or her transferee or successor agrees that the
certificates representing same shall bear the following legend reciting the
existence of the Agreement:
The sale, transfer or encumbrance of this certificate is subject to an
agreement to restrict transfer or acquisition of the shares. A copy of the
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agreement is on file in the office of the secretary of the
Corporation. Any transfer or acquisition in violation of the agreement
is null and void.
Upon the execution of this Agreement, Shareholders shall immediately
temporarily surrender his or her stock certificates to the Corporation and
the Corporation shall cause the above legend to be placed thereupon before
returning the certificates.
15. REISSUED SHARES. The Corporation shall have the right to substitute
or reissue stock in exchange for the Shares in the event of a stock split,
merger, consolidation, name change, sale, spin off, share exchange, or other
corporate reorganization. Substituted or reissued stock shall be subject to
the terms of this Agreement.
16. TERMINATION.
16.1 EVENTS CAUSING TERMINATION. This Agreement and all restrictions on
stock transfer created hereby shall be effective as of the date hereof and
shall terminate on the occurrence of the bankruptcy, receivership or
dissolution of the Corporation, on the public trading of the Shares, or on
the execution of a written instrument by the Corporation and the party or
parties who then own Shares subject to this Agreement which terminates the
same.
16.2 SURVIVAL OF RIGHTS AND REMEDIES. The termination of this Agreement
for any reason shall not affect any right or remedy existing hereunder prior
to the effective date of termination hereof.
17. GENERAL PROVISIONS.
17.1 REMEDIES. The parties agree that they will not have an adequate
remedy at law for the breach of this Agreement because, among other reasons,
the Shares cannot readily be purchased or sold on the open market. The
parties shall have available for any breach of this Agreement the remedies of
specific performance and injunctive relief, together with all other remedies
at law or in equity. No waiver of or forbearance to enforce any right or
provision hereof shall be binding unless in writing and signed by the party
to be bound, and no such waiver or forbearance in any instance shall apply to
any other instance or any other right or provision.
17.2 MODIFICATION OR TERMINATION. This Agreement may not be modified or
terminated orally, and no modification, termination, or amendment shall be
valid unless in writing signed by all parties hereto.
17.3 GOVERNING LAW. This Agreement shall be governed for all purposes
by the laws of the State of Montana.
17.4 SEVERABILITY. Each term and provision of this Agreement is
intended to be enforced to the maximum extent permitted by applicable law.
If any term or provision of this Agreement or the applicability thereof to
any person or circumstances shall to any extent be invalid or unenforceable,
the remainder of this Agreement, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby and shall continue in full
force and effect.
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17.5 NOTICES. All notices provided for by this Agreement shall be made
in writing and shall be given either: (1) by actual delivery of the notice to
the party entitled thereto; or (2) by mailing the notice in the U.S. mails,
certified mail, return receipt requested to the last known address of the
party entitled thereto. The notice shall be deemed to be received in case
(1), on the date of its actual receipt by a party and in case (2), on the
date of its mailing. Any notice to be given by Shareholder shall be given on
the form of notice attached hereto as Exhibit B.
17.6 BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the Corporation and the Shareholder and their respective heirs,
personal representatives, successors and assigns.
17.7 TIME. Time shall be of the essence of this Agreement.
17.8 HEADINGS. The headings used herein are for convenience only, and
shall not be construed as a part of this Agreement or as a limitation on the
scope of the particular paragraphs to which they refer.
17.9 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties, and supersedes any and all prior negotiations
and understandings.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth on page 1.
FIRST INTERSTATE BANCSYSTEM, INC.
By ______________________________
Xxxxxxx X. Xxxxx, Secretary
"Corporation"
____________________________
"Shareholder"
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EXHIBIT A
$_____________ (Date)
-----------------
Billings, Montana
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
_____ ______, at _________________, or such other place as is designated from
time to time by the holder of this note, in lawful money of the United
States, the sum of ________________________________________________________
($_________) in the following manner:
$_________ (including principal and interest) on ________, ____, and a
like sum on the same day of each succeeding year thereafter until the
full amount due hereunder has been paid.
Each payment shall be applied first to accrued interest on the entire
outstanding principal balance from time to time at the rate of ____% per
annum from the date hereof and then to principal. The undersigned may
not make advance payments on principal.
Any installment of principal or interest payable hereunder, or any part
thereof, which is not paid when due, shall thereafter bear interest at the
rate equal to six percent (6%) over the interest rate stated above.
If any payment due hereunder remains unpaid for more than thirty (30)
days after it is due, the holder hereof may, at its option, declare the
entire unpaid balance of principal and interest hereunder to be immediately
due and payable.
Waiver by the holder hereof of any default by the undersigned shall not
constitute a waiver by the holder of a subsequent default. Failure by the
holder to exercise any right, power or privileges which it may have by reason
of a default by the undersigned shall not preclude the exercise of such
right, power or privilege so long as such default remains uncured or if a
subsequent default occurs.
The undersigned agrees to pay all costs of collection, including a
reasonable attorney's fee, if this note is placed in the hands of an attorney
for collection after default, and hereby waives demand, presentment for
payment, protest, notice of protest, and notice of dishonor.
Words used in the singular herein shall include the plural.
FIRST INTERSTATE BANCSYSTEM, INC.
By:
--------------------------------
Its:
--------------------------------
EXHIBIT B
NOTICE
To: First Interstate BancSystem, Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
Pursuant to the Shareholder's Agreement between
________________________ ("Shareholder") and First Interstate BancSystem,
Inc. ("Corporation") dated ______________, the undersigned hereby gives
notice of:
(Check One)
_____ The undersigned shareholder's intention to sell Shares as follows:
- Number of Shares: ____________
- Proposed Purchaser
and Address: __________________________
__________________________
__________________________
- Consideration: __________________________
- Terms of Sale: __________________________
_____ The appointment of the undersigned as personal representative of
Shareholder's Estate on __________________________. A true and correct copy
of the personal representative letters issued to the undersigned is attached
hereto.
_____ The involuntary transfer of Shareholder's Shares
Dated: ______________________________________
__________________________________
ADDENDUM TO SHAREHOLDER'S AGREEMENT DATED , BETWEEN
, SHAREHOLDER, AND FIRST INTERSTATE
BANCSYSTEM, INC., CORPORATION
THIS AGREEMENT is made this ____ day of _________________, 19__, by and
between _______________________________, herein referred to as "Shareholder",
___________________________, herein referred to as "Fiduciary", and FIRST
INTERSTATE BANCSYSTEM, INC., a Montana corporation, herein referred to as the
"Corporation", as an addendum to the Shareholder's Agreement dated
_______________, by and between Shareholder and the Corporation, herein
referred to as the "Shareholder's Agreement."
W I T N E S S E T H:
A. Shareholder's Shares are held by Fiduciary for the benefit of
Shareholder.
B. Shareholder and the Corporation desire to bind Fiduciary to the
terms and conditions of the Shareholder's Agreement.
NOW, THEREFORE, the parties agree as follows:
1. FIDUCIARY TO BE BOUND BY SHAREHOLDER'S AGREEMENT. The parties
agree that Fiduciary, as custodian of or trustee over Shareholder's Shares,
is bound by the terms and conditions of the Shareholder's Agreement and is
obligated to manage and control said Shares in accordance with the
restrictions and obligations of the Shareholder's Agreement.
2. RATIFICATION OF SHAREHOLDER'S AGREEMENT. The parties agree that
except as modified herein, the terms and conditions of the Shareholder's
Agreement are hereby confirmed and ratified.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
set forth above.
FIRST INTERSTATE BANCSYSTEM, INC.
By: _________________________________
Xxxxxxx X. Xxxxx, Secretary
"CORPORATION"
________________________________
"SHAREHOLDER"
By: ____________________________
Its: ___________________________
"FIDUCIARY"
