EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
("First Amendment") made as of the 11th day of March 1997, 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, Zions Bancorp and the Company (the "Parties") entered
into an Agreement and Plan of Reorganization dated as of November 19, 1996 (the
"Reorganization Agreement"), pursuant to which the Parties agreed to the merger
of the Company with and into Zions Bancorp (the "Merger");
WHEREAS, the Reorganization Agreement contemplated a
transaction to be accounted for as a pooling of interests;
WHEREAS, Zions Bancorp has concluded that the Merger
cannot be accounted for as a pooling of interests;
WHEREAS, the Parties have determined that they wish to pursue
the Merger even if it is accounted for as a purchase;
WHEREAS, the Parties wish to effect technical adjustments to
the definitions of the "Company Election" and the "Zions Election" as used in
the Reorganization Agreement in order to prevent pricing anomalies under certain
circumstances;
WHEREAS, the Parties wish to conform the duration of any
options to purchase shares of common stock of the Company that may be issued by
the Company on or after January 1, 1997 to the duration of options to purchase
shares of common stock of Zions that are customarily issued by Zions under its
qualified stock option plan;
NOW, THEREFORE, in consideration of these premises and the
mutual agreements hereinafter set forth and those set forth in the
Reorganization Agreement, the Parties agree to amend, and accordingly do hereby
amend, the Reorganization Agreement in the manner set forth below:
A. The second sentence of section 1.2(a) of the Reorganization
Agreement, which begins "As used in these definitions," is amended to read as
follows:
As used in these definitions and in sections 10.2(d) and
10.2(e) of this Agreement, the terms "increase," "escalate,"
and "exceed"
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contemplate the possibility of a negative increase,
escalation, or excess (i.e., a decrease, deflation, or loss),
and the terms "decrease," "deflate," or "less than"
contemplate the possibility of a negative decrease, deflation,
or loss (i.e., an increase, escalation, or excess).
B. Section 1.2(a)(iii) of the Reorganization Agreement,
"Company Election," is amended to read as follows:
(iii) Company Election. The election of the Company
in its sole discretion, made under the circumstances described
in section 10.2(d), that, notwithstanding section 1.2(a)(i),
the Average Closing Price shall be the lesser of (A) the
average (rounded to the nearest xxxxx) of each Daily Sales
Price over the Pricing Period, or (B) a number of dollars and
cents, rounded to the nearest xxxxx, computed by escalating
$93.00 by a percentage comprising the difference between (I)
the number of percentage points representing the difference
between the percentage by which the average Daily Sales Price
over the Pricing Period exceeds $90.25 and the percentage by
which the average of the KBW 50 Index of Xxxxx, Xxxxxxxx &
Xxxxx, Inc. (the "KBW Index") over the Pricing Period exceeds
344.75 and (II) 15 percentage points.
C. Section 1.2(a)(ix) of the Reorganization Agreement,
"Zions Election," is amended to read as follows:
(ix) Zions Election. The election of Zions Bancorp in
its sole discretion, made under the circumstances described in
section 10.2(e), that, notwithstanding section 1.2(a)(i), the
Average Closing Price shall be the greater of (A) the average
(rounded to the nearest xxxxx) of each Daily Sales Price over
the Pricing Period, or (B) a number of dollars and cents,
rounded to the nearest xxxxx, computed by deflating $83.00 by
a percentage comprising the difference between (I) the number
of percentage points representing the difference between the
percentage by which the average Daily Sales Price over the
Pricing Period is less than $90.25 and the percentage by which
the average of the KBW Index over the Pricing Period is less
than 344.75 and (II) 15 percentage points.
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D. Section 3.3 of the Reorganization Agreement,
"Accounting Treatment," is deleted and replaced by the following
place holder:
3.3. [reserved.]
E. Section 7.4(b) of the Reorganization Agreement is
amended to read as follows:
(b) declare or distribute any stock dividend, authorize a
stock split, or authorize, issue or make any distribution of
its capital stock or any other securities (except for
issuances of Company Common Stock upon exercise of stock
options outstanding on the date of this Agreement or issued
subsequent to the date of this Agreement consistently with the
next parenthetical phrase of this sentence), or grant any
options to acquire such additional securities (except
pursuant to stock option plans in existence on the date of
this Agreement and in amounts and on terms which are in every
case consistent with past practice of the Company (provided
that any such options that may be granted on or after January
1, 1997 shall by their terms expire not later than six years
from the date of grant) and which, in any event, will not
cover more than 26,000 shares of Company Common Stock);
F. Section 7.7 of the Reorganization Agreement,
"Affiliates' Agreements," is amended to read as follows:
7.7. Affiliates' Agreements. The Company will furnish
to Zions Bancorp a list of all persons known to the Company
who at the date of the Company's special meeting of sharehold
ers to vote upon the transactions contemplated by this
Agreement may be deemed to be "affiliates" of the Company
within the meaning of Rule 145 under the 1933 Act. The Company
will use its best efforts to cause each such "affiliate" of
the Company to deliver to Zions Bancorp not later than thirty
days prior to the Effective Date a written agreement providing
that such person will not sell, pledge, transfer or otherwise
dispose of the shares of Zions Bancorp Stock to be received by
such person in the Merger except in compliance with the
applicable provisions of the 1933 Act and the rules and
regulations thereunder.
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G. The second sentence of section 3.1(a) of Exhibit I
to the the Reorganization Agreement, which begins "As used in these
definitions," is amended to read as follows:
As used in these definitions, the terms "increase,"
"escalate," and "exceed" contemplate the possibility of a
negative increase, escalation, or excess (i.e., a decrease,
deflation, or loss), and the terms "decrease," "deflate," or
"less than" contemplate the possibility of a negative
decrease, deflation, or loss (i.e., an increase, escalation,
or excess).
H. Section 3.1(a)(iii) of Exhibit I to the Reorganization
Agreement, "Company Election," is amended to read as follows:
(iii) Company Election. The election of the Company
in its sole discretion, that, notwithstanding section
3.1(a)(i), the Average Closing Price shall be the lesser of
(A) the average (rounded to the nearest xxxxx) of each Daily
Sales Price over the Pricing Period, or (B) a number of
dollars and cents, rounded to the nearest xxxxx, computed by
escalating $93.00 by a percentage comprising the difference
between (I) the number of percentage points representing the
difference between the percentage by which the average Daily
Sales Price over the Pricing Period exceeds $90.25 and the
percentage by which the average of the KBW 50 Index of Xxxxx,
Xxxxxxxx & Xxxxx, Inc. (the "KBW Index") over the Pricing
Period exceeds 344.75 and (II) 15 percentage points.
I. Section 3.1(a)(ix) of Exhibit I to the Reorganization
Agreement, "Zions Election," is amended to read as follows:
(ix) Zions Election. The election of Zions Bancorp in
its sole discretion, that, notwithstanding section 3.1(a)(i),
the Average Closing Price shall be the greater of (A) the
average (rounded to the nearest xxxxx) of each Daily Sales
Price over the Pricing Period, or (B) a number of dollars and
cents, rounded to the nearest xxxxx, computed by deflating
$83.00 by a percentage comprising the differ ence between (I)
the number of percentage points representing the difference
between the percentage by which the average Daily Sales Price
over the Pricing Period is less than $90.25 and the percentage
by which the average
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of the KBW Index over the Pricing Period is less than 344.75
and (II) 15 percentage points.
J. This First Amendment 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. It shall not be necessary in making proof of this First Amendment or
any counterpart hereof to produce or account for the other counterpart.
K. This First Amendment 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ZIONS BANCORPORATION
Attest: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
___________________ ______________________
Xxxxxx X. Xxxxxxx
President and
Chief Executive Officer
ASPEN BANCSHARES, INC.
Attest: /s/ Xxxxx X. Treadeaux By: /s/ Xxxxxx X. Xxxxxxxxx
______________________ __________________________
Xxxxx X. Treadeaux Xxxxxx X. Xxxxxxxxx
Administrative Assistant Vice President
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