EXHIBIT 2.1
EXHIBIT I
HOLDING COMPANY MERGER AGREEMENT
--------------------------------
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of [ ], 1998,
between VAL COR BANCORPORATION, INC. ("Val Cor"), a corporation organized under
the laws of the State of Colorado, and CITIZENS BANCO, INC. (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 Bancorpo ration, a corporation
organized under the laws of the State of Utah ("Zions Bancorp").
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado. As of [ ] 1998, the
authorized capital stock of the Company consisted of 1,000,000 shares of Class A
Common Stock, $1.00 par value (the "Company Class A Stock"), of which [ ] shares
were issued and outstanding, and 33,150 shares of Class B Common Stock, no par
value (the "Company Class B Stock"), of which 33,150 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 August 12, 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 accor dance with this
Agreement of Merger (the "Agreement").
The Boards of Directors of each of Val Cor and the Company deem the
Merger advisable and in the best interests of each corporation and its
stockholders. The Boards of Directors of each of Val Cor and the Company, by
resolutions duly adopted, have approved the Plan of Reorganization. The Boards
of Directors of each of Val Cor and the Company, by resolutions duly adopted,
have approved this Agreement. The Boards of Directors of each of Val Cor and the
Company have directed that this Agreement, and authorization for the
transactions contem plated hereby, be submitted to stockholders of Val Cor and
the Company respectively for approval.
At the Effective Date (as defined in Section 1.1 below) shares of
Company Class A Stock and Company Class B Stock (together, "Company Equity")
shall be converted into the right to receive shares of the common stock of Zions
Bancorp, no par value (the "Zions Bancorp Stock"), as provided herein.
In consideration of the premises and the mutual covenants and agreements
herein contained and subject to the terms and conditions of the Agreement, the
parties hereto hereby covenant and agree as follows:
ARTICLE I
1.1. Merger of the Company into Val Cor. The Company shall be merged
with and into Val Cor on the date and at the time to be specified in the
Articles of Merger to be filed with the Secretary of State of the State of
Colorado pursuant to section 0-000-000 of the Colorado Business Corporation Act
(such date and time being referred to herein as the "Effective Date").
1.2. Effect of the Merger. At the Effective Date:
(a) The Company and Val Cor shall be a single corporation, which
shall be Val Cor. Val Cor is hereby designated as the surviving corporation in
the Merger and is herein after sometimes called the "Surviving Corporation."
(b) The separate existence of the Company shall cease.
(c) The Surviving Corporation shall have all the rights,
privileges, immuni ties, and powers and shall assume and be subject to all the
duties and liabilities of a corporation organized under the Colorado Business
Corporation Act.
(d) The Surviving Corporation shall thereupon and thereafter
possess all of the rights, privileges, immunities, and franchises, of a public
as well as of a private nature, of each of the Constituent Corporations; and all
property, real, personal and mixed, and all debts due on whatever account,
including subscriptions to shares and all other choses in action, and all and
every other interest of and belonging to or due to each of the Constituent
Corporations shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and the title to any real
estate, or any interest therein, vested in either of the Consti tuent
Corporations shall not revert or be in any way impaired by reason of the Merger.
(e) The Surviving Corporation shall thenceforth be responsible and
liable for all the liabilities and obligations of each of the Constituent
Corporations; and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations may be prosecuted as if the
Merger had not taken place, or the Surviving Corporation may be substituted in
its place. The Surviving Corporation expressly assumes and agrees to perform all
of the Company's liabilities and obligations. Neither the rights of creditors
nor any liens upon the property of either Constituent Corporation shall be
impaired by the Merger.
(f) The Articles of Incorporation of Val Cor as they exist
immediately prior to the Effective Date shall be the Articles of Incorporation
of the Surviving Corporation until later amended pursuant to Colorado law.
(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 Equity 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
Equity, Zions Bancorp may rely
- 2 -
conclusively upon the record of stockholders maintained by the Company
containing the names and addresses of the holders of record of the Company
Equity at the Effective Date.
1.3. Acts to Carry Out This Merger Plan.
(a) The Company and its proper officers and directors shall and
will do all such acts and things as may be necessary or proper to vest, perfect,
or confirm title to such property or rights in Val Cor and otherwise to carry
out the purposes of this Agreement.
(b) If, at any time after the Effective Date, Val Cor shall
consider or be advised that any further assignments or assurances in law or any
other acts are necessary or desirable to (i) vest, perfect, or confirm, of
record or otherwise, in Val Cor its right, title, or interest in or under any of
the rights, properties, or assets of the Company acquired or to be acquired by
Val Cor as a result of, or in connection with, the Merger, or (ii) otherwise
carry out the purposes of this Agreement, the Company and its proper officers
and directors shall be deemed to have granted to Val Cor an irrevocable power of
attorney to execute and deliver all such proper deeds, assignments, and
assurances in law and to do all acts necessary or proper to vest, perfect, or
confirm title to and possession of such rights, properties, or assets in Val Cor
and otherwise to carry out the purposes of this Agreement; and the proper
officers and directors of Val Cor are fully authorized in the name of the
Company or otherwise to take any and all such action.
ARTICLE II
2.1. Capitalization. The authorized shares of capital stock of Val Cor
as of the Effective Date shall be [ ] shares of Common Stock, [ ] par value.
2.2. By-Laws. The By-Laws of Val Cor as they exist immediately prior to
the Effective Date shall be the By-Laws of Val Cor until later amended pursuant
to Colorado law.
ARTICLE III
3.1. Manner of Converting Shares. Subject to the terms, conditions, and
limitations set forth herein:
(a) as soon after the Effective Date as shall be reasonable under
the circum stances, Zions Bancorp will deliver to Zions First National Bank, a
national banking association with its head office located in Salt Lake City,
Utah ("Zions Bank"), as Escrow Agent pursuant to that certain Escrow Agreement
to be entered into pursuant to section 1.10 of the Plan of Reorganization, 6,000
shares of Zions Bancorp Stock; and
(b) upon surrender of his, her or its certificate or certificates,
each holder of shares of Company Equity shall be entitled to receive, in
exchange for each share of Company Equity held of record by such stockholder as
of the Effective Date, that number of shares of Zions Bancorp Stock calculated
by dividing the Consideration Number by the total number of shares of Company
Equity that shall be issued and outstanding at the Effective Date.
(c) As used in paragraph (b) of this section 3.1, the term
"Consideration Number" means 251,225, except that if the Transaction Expenses
(as hereinafter defined), determined on a pre-tax basis in accordance with
generally accepted accounting principles,
- 3 -
exceed $100,000, then the "Consideration Number" shall be the difference between
251,225 and the number calculated by dividing such excess, net of any associated
tax benefit, by $47.125. As used in the preceding sentence, "Transaction
Expenses" are all expenses incurred from January 1, 1998 through the Effective
Date with respect to attorneys, accountants, investment bankers, consultants,
brokers and finders who will have rendered services to the Company or the Bank
in connection with the transactions contemplated by this Agreement, it being
agreed, however, that (i) the costs of any audit of the financial statements of
the Company and the Bank as of December 31, 1997 and the year then ended which
is required to be obtained to comply with requirements imposed by the Securities
and Exchange Commission in connection with the registration of the stock to be
used as consideration in connection with the Merger are not Transaction Expenses
for purposes of the previous sentence, and (ii) if the matter set forth in
Schedule 3.1 attached hereto is finally resolved prior to the Effective Date and
if the aggregate loss, cost, expense, liability, or damage incurred by the
Company and its subsidiaries in connection with its final resolution is $282,750
or less, then the amount of such aggregate loss, cost, expense, liability, or
damage shall not be Transaction Expenses for purposes of the previous sentence.
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 holder of Company Equity 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 $47.125. Such fractional share interest shall not include the
right to vote or to receive dividends or any interest thereon.
3.3. Dividends; Interest. No holder of Company Equity will be entitled
to receive dividends on his, her, or its Zions Bancorp Stock until he, she, or
it exchanges his, her, or its certificates representing Company Equity for Zions
Bancorp Stock. Any dividends declared on Zions Bancorp Stock to holders of
record on or after the Effective Date shall, with respect to stock to be
delivered pursuant to this Agreement to holders of Company Equity who have not
exchanged their certificates representing Company Equity 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 holder of Company Equity of
certificates representing shares of Company Equity, the Exchange Agent shall
forward to such former holder of Company Equity (i) certificates representing
his, her, or its shares of Zions Bancorp Stock, (ii) dividends declared thereon
subse quent 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, (i)
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 Equity in
accordance with this Agreement, and (ii) issue and deliver to Zions Bank the
share certificates representing shares of Zions Bancorp Stock to be delivered to
the Escrow Agent 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 Equity 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, her, or its certificate or certificates to
- 4 -
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
Equity not exercised prior to the Effective Date shall automatically be canceled
on and as of the Effective Date.
ARTICLE IV
4.1. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
parties hereto. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for the other counterpart.
4.2. Section Headings. The section and subsection headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. Any reference to a "person"
herein shall include an individual, firm, corpora tion, partnership, trust,
government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
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 Colorado,
without giving effect to the principles of conflict of law thereof. The parties
hereby designate Denver County, Colorado 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 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) termina tion of the Plan of Reorganization or (ii) the mutual consent of Val
Cor and the Company at any time prior to the Effective Date, and there shall be
no liability on the part of either of the parties hereto (or any of their
respective officers or directors) except to the extent provided in the Plan of
Reorganization.
- 5 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VAL COR BANCORPORATION, INC.
Attest: By:
------------------------------- -----------------------------
Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer President and Chief Executive
and Secretary Officer
CITIZENS BANCO, INC.
Attest: By:
------------------------------- -----------------------------
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Treasurer and Secretary Chairman and President
- 6 -
----------------------------------
)
State of Colorado )
) ss.
County of Denver )
)
----------------------------------
On this [______] day of [________], 1998, before me personally appeared
Xxxx X. Xxxx, to me known to be the President and Chief Executive Officer of Val
Cor Bancorporation, Inc., and acknowledged said instrument to be the free and
voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that he was authorized to execute said instrument
and that the seal affixed is the corporate seal of said corporation.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
------------------------------
Notary Public
- 7 -
----------------------------------
)
State of Colorado )
) ss.
)
County of Xxxxx )
)
----------------------------------
On this [______] day of [________], 1998, before me personally appeared
Xxxxxx X. Xxxxxxxx, to me known to be the Chairman and President of Citizens
Banco, Inc., and acknowledged said instrument to be the free and voluntary act
and deed of said corporation, for the uses and purposes therein mentioned, and
on oath stated that he was authorized to execute said instrument and that the
seal affixed is the corporate seal of said corporation.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
----------------------------------
Notary Public
- 8 -
SCHEDULE 3.1
ANY CLAIM ON BEHALF OF PROFESSIONAL BANK CONSULTANTS, INC. OR XXXX X. XXXXX TO A
FINDER'S FEE, BROKERAGE COMMISSION, OR COMPENSATION FOR FINANCIAL OR ADVISORY
SERVICES IN CONNECTION WITH THE SALE OR MERGER OF CITIZENS BANCO, INC. OR ANY
AFFILIATE TO OR WITH ZIONS BANCORPORATION OR ANY AFFILIATE.
- 9 -
EXHIBIT II
BANK MERGER AGREEMENT
---------------------
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of [_______],
1998, between VECTRA BANK COLORADO, NATIONAL ASSOCIATION ("Vectra"), a national
banking association organized under the laws of the United States, and CITIZENS
BANK (the "Bank"), a banking corporation organized under the laws of the State
of Colorado. Vectra and the Bank are hereinafter sometimes individually called a
"Constituent Association" and collectively called the "Constituent
Associations."
RECITALS
Vectra is a national banking association duly organized, validly
existing and in good standing under the laws of the United States. As of
[_________], 1998, the authorized capital stock of Vectra consisted of
[___________] shares of Common Stock, $5.00 par value, of which [___________]
shares were issued and outstanding; no shares of capital stock were held in its
treasury on such date.
The Bank is a banking corporation organized under the laws of the State
of Colorado. As of [___________], 1998, the authorized capital stock of the Bank
consisted of [_________] shares of Bank Common Stock, [_________] par value (the
"Bank Common Stock"), of which [________] shares were issued and outstanding; no
shares of capital stock were held in its treasury on such date.
Vectra and the Bank have entered into an Agreement and Plan of
Reorganization, dated August 12, 1998 (the "Plan of Reorganization"), setting
forth certain representations, warranties, and agreements in connection with the
transactions therein and herein contemplated, which contemplates the merger of
the Bank with and into Vectra (the "Merger") in accordance with this Agreement
of Merger (the "Agreement").
The Boards of Directors of each of Vectra and the Bank deem the Merger
advisable and in the best interests of each association and its stockholders.
The Boards of Directors of each of Vectra and the Bank, by resolutions duly
adopted, have approved the Plan of Reorganization. The Boards of Directors of
each of Vectra and the Bank, by resolutions duly adopted, have approved this
Agreement. The Boards of Directors of each of Vectra and the Bank have directed
that this Agreement, and authorization for the transactions contemplated hereby,
be submitted to stockholders of Vectra and the Bank respectively for approval.
In consideration of the premises and the mutual covenants and
agreements herein contained and subject to the terms and conditions of the
Agreement, the parties hereto hereby covenant and agree as follows:
ARTICLE I
1.1. Merger of the Bank into Vectra. The Bank shall be merged with and
into Vectra on the date and at the time to be specified in the Articles of
Merger to be filed with the Comptroller of the Currency pursuant to the National
Bank Act (such date and time being referred to herein as the "Effective Date").
1.2. Effect of the Merger. At the Effective Date:
(a) The Bank and Vectra shall be a single association, which
shall be Vectra. Vectra is hereby designated as the surviving association in the
Merger and is hereinafter some times called the "Surviving Association."
(b) The separate existence of the Bank shall cease.
(c) The currently outstanding [ ] shares of common stock of
Vectra, each of $5.00 par value, will remain outstanding as shares of the $5.00
par value common stock of Vectra, and the holders of such stock shall retain
their present rights.
(d) The shares of Bank Common Stock shall be canceled.
(e) The Surviving Association shall have all the rights,
privileges, immunities, and powers and shall assume and be subject to all the
duties and liabilities of a national banking association organized under the
National Bank Act.
(f) The Surviving Association shall thereupon and thereafter
possess all of the rights, privileges, immunities, and franchises, of a public
as well as of a private nature, of each of the Constituent Associations; and all
property, real, personal and mixed, and all debts due on whatever account,
including subscriptions to shares and all other choses in action, and all and
every other interest of and belonging to or due to each of the Constituent
Associations shall be taken and deemed to be transferred to and vested in the
Surviving Association without further act or deed; and the title to any real
estate, or any interest therein, vested in either of the Constituent
Associations shall not revert or be in any way impaired by reason of the Merger.
(g) The Surviving Association shall thenceforth be responsible
and liable for all the liabilities and obligations of each of the Constituent
Associations; and any claim existing or action or proceeding pending by or
against either of the Constituent Associations may be prosecuted as if the
Merger had not taken place, or the Surviving Association may be substituted in
its place. The Surviving Association expressly assumes and agrees to perform all
of the liabilities and obligations of the Bank. Neither the rights of creditors
nor any liens upon the property of either Constituent Association shall be
impaired by the Merger.
(h) The name of the Surviving Association shall be "Vectra
Bank Colorado, National Association."
(i) The Articles of Association of Vectra as they exist
immediately prior to the Effective Date shall be the Articles of Association of
the Surviving Association until later amended pursuant to the laws of the United
States.
(j) The By-Laws of Vectra as they exist immediately prior to
the Effective Date shall be the By-Laws of Vectra until later amended pursuant
to the laws of the United States.
1.3. Acts to Carry Out This Merger Plan.
(a) The Bank and its proper officers and directors shall and
will do all such acts and things as may be necessary or proper to vest, perfect,
or confirm title to such property or rights in Vectra and otherwise to carry out
the purposes of this Agreement.
- 2 -
(b) If, at any time after the Effective Date, Vectra shall
consider or be advised that any further assignments or assurances in law or any
other acts are necessary or desirable to (i) vest, perfect, or confirm, of
record or otherwise, in Vectra its right, title, or interest in or under any of
the rights, properties, or assets of the Bank acquired or to be acquired by
Vectra as a result of, or in connection with, the Merger, or (ii) otherwise
carry out the purposes of this Agreement, the Bank and its proper officers and
directors shall be deemed to have granted to Vectra an irrevocable power of
attorney to execute and deliver all such proper deeds, assign ments, and
assurances in law and to do all acts necessary or proper to vest, perfect, or
confirm title to and possession of such rights, properties, or assets in Vectra
and otherwise to carry out the purposes of this Agreement; and the proper
officers and directors of Vectra are fully authorized in the name of the Bank or
otherwise to take any and all such action.
ARTICLE II
2.1. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
parties hereto. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for the other counterpart.
2.2. Section Headings. The section and subsection headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. Any reference to a "person"
herein shall include an individual, firm, corporation, partnership, trust,
government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
2.3. Choice of Law and Venue. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Colorado,
without giving effect to the principles of conflict of law thereof. The parties
hereby designate Denver County, Colorado 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 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.
2.6. Termination. This Agreement shall terminate and be abandoned upon
(i) termination of the Plan of Reorganization or (ii) the mutual consent of
Vectra and the Bank at
- 3 -
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.
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION
Attest: By:
---------------------------- ------------------------------------
Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer President and Chief Executive
and Secretary Officer
CITIZENS BANK
Attest: By:
---------------------------- ------------------------------------
Xxxxxx X. Xxxxx
President
- 4 -
----------------------------------
)
State of Colorado )
) ss.
)
County of Denver )
)
----------------------------------
On this [______] day of [________], 1998, before me personally appeared
Xxxx X. Xxxx, to me known to be the President and Chief Executive Officer of
Vectra Bank Colorado, National Association, and acknowledged said instrument to
be the free and voluntary act and deed of said association, for the uses and
purposes therein mentioned, and on oath stated that he was authorized to execute
said instrument and that the seal affixed is the corporate seal of said
association.
In Witness Whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
------------------------------------
Notary Public
- 5 -
----------------------------------
)
State of Colorado )
) ss.
)
County of Xxxxx )
)
----------------------------------
On this [______] day of [________], 1998, before me personally appeared
Xxxxxx X. Xxxxx, to me known to be the president of Citizens 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
- 6 -
EXHIBIT III
VOTING AGREEMENT
August 12, 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 Citizens
Banco, Inc. (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 Class A Common Stock and Class B Common Stock of the Company (the
"Company Equity") into Zions Bancorp Common Stock and cash in lieu of fractional
shares in accordance with the formula therein set forth.
In order to induce Zions Bancorp to enter into the Agreement, and
intending to be legally bound hereby, the undersigned, subject to the conditions
hereinafter stated, represents, warrants, and agrees that at the Company
Shareholders' Meeting contemplated by Section 3.1 of the Agreement and Plan of
Reorganization (the "Meeting"), and any adjournment thereof, the under signed
will, in person or by proxy, vote or cause to be voted in favor of the Agreement
and the Merger the shares of Company Equity 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 Equity
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 Equity 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
Zions Bancorporation
August 12, 1998
Page 2
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 Citizens Bank,
from acting, in his or her capacity as a director, as the undersigned may
determine to be appropriate in light of the obligations of the undersigned as a
director. It is further understood and agreed that the term "Shares" shall not
include any securities beneficially owned by the undersigned as a trustee or
fiduciary for another (unless such other person is affiliated with the
undersigned or is bound by an agreement with Zions Bancorp substantially similar
to this agreement), and that this agreement is not in any way intended to affect
the exercise by the undersigned of the undersigned's fiduciary responsibility in
respect of any such securities.
Very truly yours,
---------------------------
Accepted and Agreed to:
ZIONS BANCORPORATION
By:
--------------------------------------------
Title:
-----------------------------------------
Zions Bancorporation
August 12, 1998
Page 3
Name of Shareholder:
Shares of Class A Common Stock and Class B Common Stock
of Citizens Banco, Inc. Beneficially Owned
As of August 12, 1998
Name(s) of Class and Number
Record Owner(s) Beneficial Ownership (1)/ of 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 agree ment with Zions Bancorp substantially similar to this
agreement) and if the shareholder named above has the power (alone or, in the
case of shares held jointly with his or her spouse, together with his or her
spouse) to direct the voting of such shares.
EXHIBIT IV
ESCROW AGREEMENT
THIS ESCROW AGREEMENT made as of the twelfth day of August, 1998, among
ZIONS BANCORPORATION ("Zions Bancorp"), a Utah corporation having its principal
office in Salt Lake City, Utah, CITIZENS BANCO, INC., a Colorado corporation
having its principal office in Westminster, Colorado (the "Company"), and ZIONS
FIRST NATIONAL BANK, a national banking association having its head office in
Salt Lake City, Utah (the "Escrow Agent")
W I T N E S S E T H T H A T :
WHEREAS, Zions Bancorp, Val Cor Bancorporation, Inc. ("Val Cor"),
Vectra Bank Colorado, National Association ("Vectra"), the Company, and Citizens
Bank have this day executed an Agreement and Plan of Reorganization (the "Plan
of Reorganization") under which the Company would merge with and into Val Cor
(the "Holding Company Merger") and equity holders of the Company (the "Equity
Holders") would receive shares of the common stock of Zions Bancorp, no par
value per share ("Zions Bancorp Stock"), and cash in lieu of fractional shares,
as more particularly described in the Plan of Reorganization;
WHEREAS, Zions Bancorp and the Company (the "Principals") desire that
the Escrow Agent hold certain shares of Zions Bancorp Stock to be issued in the
Holding Company Merger, under terms and conditions described herein, pending the
disposition of a certain existing contingency that is likely to continue to
exist at the effective date of the Holding Company Merger (the "Effective
Date"); and
WHEREAS, the Escrow Agent has agreed to act as escrow agent on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein and in the Plan of Reorganization and other good and lawful
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. ESCROWED PROPERTY
As used in this Agreement, "Escrowed Property" refers to 6,000 shares
of Zions Bancorp Stock, to be initially registered in the name of the Escrow
Agent as escrow agent, which shall have been transferred by Zions Bancorp to the
Escrow Agent, together with such other property as shall become Escrowed
Property as provided in Section 3 hereof, and reduced as provided in paragraph
(c) of section 2.2 of this Agreement or elsewhere herein.
2. MANNER OF DISTRIBUTING ESCROWED PROPERTY
2.1. Contingency. The Principals acknowledge and agree as follows:
(a) The sole purpose of the escrow established through this
Agreement is to provide a means for the disposition of a certain existing
contingency that is likely to continue to exist at the Effective Date and which
is described on Schedule A to this Agreement (the "Contingency").
(b) The costs to be absorbed by recourse to the Escrowed
Property (herein after the "Losses" and each individually a "Loss") include and
are expressly limited to any loss, cost, expense, liability, or damage,
including court costs and such counsel fees as are incurred and as may be
assessed by a court or arbitrator, assessed against or borne by Zions Bancorp or
any of its subsidiaries or the Company or any of its subsidiaries as a result of
one or more adverse judgments rendered against it by a court or arbitrator, or
paid or to be paid in settlement of an action or proceeding before a court or
arbitrator, as a result of or otherwise relating to actions of the Company or
any of its subsidiaries or any of the directors, officers, employees, or agents
of any of them which occurred prior to the Effective Date and which relate to
the Contingency; provided that solely for purposes of section 2.2(b) of this
Agreement, if the Contingency is finally resolved and if the aggregate loss,
cost, expense, liability, or damage incurred by the Company and its subsidiaries
in connection with its final resolution is $5,000 or less, the Company and its
subsidiaries shall be deemed to have incurred no Loss.
(c) To the extent that recourse to the Escrowed Property is
not needed to absorb Losses, the remaining Escrowed Property is to be released
pursuant to, and subject to the terms and conditions of, this Agreement to those
persons who, immediately prior to the Effective Date, were equity holders of the
Company.
2.2. Disposition of Contingency.
(a) On the Effective Date, the Principals shall provide
written notice to the Escrow Agent of the Effective Date.
(b) In the event that prior to the Effective Date the
Principals shall deliver to the Escrow Agent joint written instructions to the
effect that the Contingency has been finally resolved without Loss to the
Company and its subsidiaries taken as a whole, the Escrow Agent upon receipt of
the Escrowed Property shall deliver the Escrowed Property to Zions Bank as
Exchange Agent under the Plan of Reorganization for distribution as provided in
section 1.2(b) of the Plan of Reorganization, subject to the other terms and
conditions of the Plan of Reorganization.
(c) In all other cases, in the event of any one or more Loss
or Losses, Zions Bancorp and (before the Effective Date) the Company or (after
the Effective Date) the Agent for Equity Holders (as designated pursuant to
section 4.1 of this Agreement) in each event shall deliver notice of the amount
of such Loss or Losses to the Escrow Agent. On the fifth business day after its
receipt of such any notice, the Escrow Agent shall redeliver to Zions Bancorp
Escrowed Property with a value equal to the Loss or Losses enumerated in such
notice.
(d) On the earlier of (i) the fifth business day after the
Principals shall deliver to the Escrow Agent joint written instructions to the
effect that the Contingency has been finally resolved and that Losses to be
absorbed by recourse to the Escrowed Property have been so absorbed (to the
extent of the lesser of the amount of such Losses or the value of the Escrowed
Property) or (ii) the fifth business day after the third anniversary of the
Effective Date, the Escrow Agent shall deliver the remaining Escrowed Property
to Zions Bank as Exchange Agent under the Plan of Reorganization for
distribution as provided in section 1.2(b) of the Plan of Reorganization,
subject to the other terms and conditions of the Plan of Reorganization.
2.3. Valuation of Zions Bancorp Stock. If the Escrow Agent shall
redeliver shares of Zions Bancorp Stock to Zions Bancorp pursuant to section
2.2(c) of this Agreement, such shares shall be valued for such purposes at
$47.125 per share. All prices under this Section 2.3 shall be appropriately
adjusted to account for stock dividends, split-ups, mergers, recapitalizations,
- 2 -
combinations, conversions, exchanges of shares or the like in accordance with
instructions to be provided to the Escrow Agent by Zions Bancorp.
2.4. Settlement of Contingency; Litigation Counsel.
(a) Until the Effective Date without the consent of Zions
Bancorp, which consent shall not unreasonably be withheld, the Company shall not
enter into, and shall not permit Citizens Bank to enter into, any settlement
agreement with respect to the Contingency which would cause aggregate Losses to
exceed the value of the Escrowed Property.
(b) Following the Effective Date without the consent of the
Agent for Equity Holders, which consent shall not unreasonably be withheld,
Zions Bancorp shall not enter into, and shall not permit Val Cor or Vectra to
enter into, any settlement agreement with respect to the Contingency.
(c) Following the Effective Date Zions Bancorp shall not
incur, and shall not permit Val Cor or Vectra to incur, any counsel fees in
connection with litigation with respect to the Contingency unless the identity
of counsel is acceptable to the Agent for Equity Holders, consent to whose
identity shall not unreasonably be withheld.
3. CONDITIONS OF ESCROW
3.1. Dividends. Cash dividends, stock dividends, and shares resulting
from stock splits, in respect of shares held as Escrowed Property, shall be
added to the Escrowed Property as received and held thereafter by the Escrow
Agent subject to the provisions of this Agreement. Any cash held by the Escrow
Agent shall be invested pursuant to written instructions provided by Zions
Bancorp.
3.2. Voting Rights. After the Effective Date, as nearly as practicable
to do so the Escrow Agent shall endeavor to vote each share of Zions Bancorp
Stock which constitutes Escrowed Property in a manner consistent with
directions, if any, received from the Equity Holder who would be entitled to
have such shares distributed to him, her, or it under section 2.2(d) of this
Agreement or, in the absence of such direction, as permitted by law.
3.3. Fees and Expenses. The fees and expenses of the Escrow Agent
hereunder shall be assessed against the Escrowed Property.
4. AGENT FOR EQUITY HOLDERS
4.1. Designation of Agent for Equity Holders. The Company hereby
designates Xxxxxx X. Xxxxxxxx ("Xxxxxxxx") to be the Agent for Equity Holders
for purposes of this Agreement. In the event that Xxxxxxxx should be or become
unable or unwilling to serve as Agent for Equity Holders, the successor Agent
for Equity Holders shall be whoever is either (a) designated as such by Equity
Holders holding interests in a majority of the Escrowed Property or (b) elected
to serve as such at a meeting of Equity Holders convened pursuant to written
notice mailed to all Equity Holders not less than ten days in advance of such
meeting, stating the purpose of the meeting, by a vote of Equity Holders holding
interests in a majority of the Escrowed Property represented at such meeting.
The costs associated with noticing and convening such meeting shall be charged
against the Escrowed Property.
4.2. Responsibilities of Agent for Equity Holders. The Agent for Equity
Holders designated herein shall have full authority from and on behalf of the
Company and the Equity
- 3 -
Holders and each of them to give written notices and written instructions to the
Escrow Agent with regard to matters within the scope of the responsibilities of
the Escrow Agent.
5. LIMITATIONS
5.1 Holding of Escrowed Property.
(a) The Escrow Agent agrees to hold all of the Escrowed
Property in escrow subject to the terms and conditions contained in this
Agreement.
(b) To the extent needed to fund cash payments that are
required or permitted to be made from the Escrowed Property under the terms of
this Agreement, or as jointly instructed in writing by Zions Bancorp and the
Agent for Equity Holders, the Escrow Agent may liquidate shares of Zions Bancorp
Stock held as Escrowed Property, by selling such shares in broker's transactions
on the open market, at any time, provided that no such sales may commence until
after the Escrow Agent has received written notification from Zions Bancorp and
the Agent for Equity Holders that results covering at least thirty (30) days of
combined operations of Zions Bancorp and the Company after the Holding Company
Merger have been published by Zions Bancorp within the meaning of section 201.01
of the Codification of Financial Reporting Policies of the Securities and
Exchange Commission.
5.2 No Constructive Notice. The Escrow Agent shall not be deemed to
have knowledge of any matter or thing unless and until the Escrow Agent has
actually received written notice of such matter or thing, and the Escrow Agent
shall not be charged with any constructive notice whatsoever.
5.3 Expenses. In the event instructions received by the Escrow Agent
would require the Escrow Agent to expend any monies or to incur any cost the
expenditure or incurrence of which cannot be satisfied from the Escrowed
Property, the Escrow Agent shall be entitled to refrain from taking any action
until it receives payment for such costs.
5.4 Non-Exclusivity. The Principals acknowledge and agree that nothing
in this Ag reement shall prohibit the Escrow Agent from serving in a similar
capacity on behalf of others.
5.5 Conflicting Instructions.
(a) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions, claims, or
demands from Zions Bancorp, the Company, the Agent for Equity Holders, or third
persons with respect to the Escrowed Property or any other sums or things which
may be held hereunder, which in its sole opinion are in conflict with any
provision of this Agreement, the Escrow Agent shall be entitled to refrain from
taking any action until it shall be directed otherwise in writing by Zions
Bancorp, the Company, the Agent for Equity Holders, and said third persons, if
any, or by a final order or judgment of a court or arbitrator of competent
jurisdiction.
(b) If the Escrow Agent shall be unable at any time to
determine from this Agree ment to whom any portion or all of the Escrowed
Property should be delivered, the Escrow Agent may issue to Zions Bancorp and
(before the Effective Date) the Company or (after the Effective Date) the Agent
for Equity Holders a written request for joint written instructions as to
delivery of such Escrowed Property. If the Escrow Agent shall not receive,
within twenty days after the Escrow Agent has issued the written request for
instructions, joint written instructions sufficient in the sole discretion of
the Escrow Agent, then the Escrow Agent shall be entitled to
- 4 -
either (i) interplead the Escrowed Property at issue into a court of competent
jurisdiction and name Zions Bancorp and the Equity Holders as defendants, and
then the Escrow Agent shall be discharged of any obligations in connection with
such Escrowed Property, or (ii) submit the matter for final determination by
arbitration as provided in Section 18.1 hereof.
5.6 Reliance of Escrow Agent. The Escrow Agent shall be protected in
acting upon any notice, request, waiver, consent, receipt or other paper or
document received from Zions Bancorp, the Company, or the Agent for Equity
Holders and believed by the Escrow Agent to be genuine. The Escrow Agent shall
be under no duty or obligation to ascertain the identity, authority and/or
rights of any person submitting instructions to the Escrow Agent in accordance
with the Escrow Agreement.
6. LIABILITY OF ESCROW AGENT
It is agreed that the duties of the Escrow Agent are solely to hold in
escrow the Escrowed Property pursuant to this Agreement and shall be expressly
limited to the safe keeping of the Escrowed Property, and for the disposition of
same, in accordance with this Agreement, and that the Escrow Agent shall not be
liable for any act or omission except acts and omissions that constitute gross
negligence or willful misconduct.
7. DISPUTES
7.1 Litigation. In the event the Escrow Agent is joined as a party to a
lawsuit by virtue of the fact that it is holding the Escrowed Property, the
Escrow Agent shall, at its option, either (1) tender the Escrowed Property or,
at its option, the disputed portion thereof, to the registry of the appropriate
court or (2) disburse the Escrowed Property in accordance with the court's
ultimate disposition of the case.
7.2 Release from Liability. In the event the Escrow Agent tenders all
or a portion of the Escrowed Property to the registry of the appropriate court
and files an action of interpleader naming the Equity Holders and any affected
third parties of whom the Escrow Agent has received actual notice, the Escrow
Agent shall be released and relieved from any and all further obligation and
liability hereunder or in connection herewith.
8. TERM OF AGREEMENT
8.1 Termination. This Agreement shall remain in effect until it is
terminated in any of the following manners:
(a) Upon written notice given by Zions Bancorp and (before the
Effective Date) the Company or (after the Effective Date) the Agent for Equity
Holders of cancellation of designation of the Escrow Agent to act and serve in
said capacity, in which event cancellation shall take effect no earlier than
three (3) days after notice to the Escrow Agent of such cancellation; or
(b) The Escrow Agent may resign as escrow agent at any time
upon giving notice to Zions Bancorp and (before the Effective Date) the Company
or (after the Effective Date) the Agent for Equity Holders of its desire to so
resign; provided, however, that resignation of the Escrow Agent shall take
effect no earlier than thirty (30) days after the giving of notice of
resignation; or
- 5 -
(c) Upon compliance with all provisions as set forth in this
agreement.
8.2 Disposition Upon Termination. Upon termination of the duties of the
Escrow Agent in either manner set forth in subsection (a) or (b) of Section 8.1,
the Escrow Agent shall deliver all of the Escrowed Property to the newly
appointed escrow agent designated by Zions Bancorp and (before the Effective
Date) the Company and (after the Effective Date) the Agent for Equity Holders,
and, except for rights of the Escrow Agent specified in Section 7.1 of this
Agreement, the Escrow Agent shall not otherwise have the right to withhold
Escrowed Property from said newly appointed escrow agent.
8.3 Modification of Agreement. The Escrow Agent shall not be bound by
any modification, cancellation, or rescission of this Agreement unless in
writing and signed by Zions Bancorp and the Escrow Agent and (before the
Effective Date) the Company or (after the Effective Date) the Agent for Equity
Holders. In no event shall any modification of this Agree ment, which shall
affect the rights or duties of the Escrow Agent, be binding on the Escrow Agent
unless it shall have given its prior written consent.
9. COSTS AND EXPENSES
The Escrow Agent shall receive reasonable compensation for its services
hereunder. Such expenses incurred by the Escrow Agent in the exercise of the
responsibilities hereunder, including, without limitation, costs related to any
interpleader action and costs reasonably incurred in defense of any action which
arises out of the exercise of its responsibilities hereunder (unless the Escrow
Agent shall have acted in a grossly negligent manner or in a manner constituting
willful misconduct), shall be charged against the Escrowed Property.
10. 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
Xxx Xxxxx Xxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Executive Vice President and Secretary
With a required copy to:
Xxxxx X. Xxxxxx, Esq.
Duane, Morris & Heckscher LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
- 6 -
If to the Company:
Citizens Banco, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Chairman and President
With a required copy to:
Xxxxxxxx X. Xxxxxxxx, Esq.
Rothgerber, Xxxxxxx & Xxxxx LLP
One Xxxxx Center, Suite 3300
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
If to the Agent for Equity Holders:
Xx. Xxxxxx X. Xxxxxxxx
[ ]
[ ]
With a required copy to:
Xxxxxxxx X. Xxxxxxxx, Esq.
Rothgerber, Xxxxxxx & Xxxxx LLP
One Xxxxx Center, Suite 3300
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
If to the Escrow Agent:
Zions First National Bank
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxx
All such notices shall be deemed to have been given on the date
delivered, transmitted, or mailed in the manner provided above.
11. CHOICE OF LAW AND VENUE
This Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of Colorado, without giving effect to the
principles of conflict of law thereof. The parties hereby designate Denver
County, Colorado 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 Colorado. Each of the parties irrevocably and unconditionally waives
and agrees, to the
- 7 -
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.
12. CUMULATIVE RIGHTS
No right, power, or remedy conferred upon the Escrow Agent by this
Agreement is exclusive of any other right, power, or remedy, but each and every
such right, power, or remedy shall be cumulative and concurrent and shall be in
addition to any other right, power, or remedy the Escrow Agent may have under
this Agreement or now or hereafter existing at law, in equity, or by statute,
and the exercise of one right, power, or remedy by the Escrow Agent shall not be
construed or considered as a waiver of any other right, power, or remedy.
13. BINDING AGREEMENT; INTENDED BENEFICIARIES
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns. The Parties intend the equity holders of the
Company immediately before the Effective Date to be beneficiaries of 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 the Parties, the
equity holders of the Company, and the Escrow Agent any rights or remedies under
or by reason of this Agreement.
14. HEADINGS
The headings of the sections of this Agreement are for convenient
reference only and they shall not limit or otherwise affect the interpretation
or effect of any term or provision hereof.
15. SEVERABILITY
The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such invalid or unenforceable provision were
omitted.
16. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to constitute an original and become effective when one or
more counterparts have been signed by each of the parties hereto and delivered
to the other party.
17. COUNSEL FOR ESCROW AGENT
In regard of all matters pertaining to this Agreement, the Escrow Agent
shall be entitled to retain counsel of its own choosing and to rely on the
advice of such counsel in such matters.
18. ARBITRATION.
18.1 Instructions to Escrow Agent. Zions Bancorp and (before the
Effective Date) the Company or (after the Effective Date) the Agent for Equity
Holders shall, each at the request of the other, from time to time consult and
cooperate with each other in the giving of joint written instructions to the
Escrow Agent for the delivery from the Escrowed Property of shares of Zions
- 8 -
Bancorp Stock as herein provided and shall use their best efforts to effectuate
the purposes of this Agreement in a fair and responsible manner. If at any time
during the period of the escrow Zions Bancorp and the Company or (before the
Effective Date) the Company or (after the Effective Date) the Agent for Equity
Holders shall not be able, for a period of seven days, to concur upon joint
written instructions to the Escrow Agent, their differences shall, at the
request of either of them, at the expiration of such number of days, be
submitted for final determination to arbitration in accordance with Section 18.3
hereof.
18.2 Other Disputes. Other disputes between or among Zions Bancorp and
(before the Effective Date) the Company or (after the Effective Date) the Agent
for Equity Holders which relate to the matters addressed by the provisions of
this Agreement shall be submitted for final determination to arbitration as
provided in Section 18.3 hereof.
18.3 Arbitration Proceedings.
(a) Disputes 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 a
party notifies the other parties 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.
(b) The costs of arbitration shall be assessed against the
Escrowed Property or a party as determined by the arbitrator. The decision of
the arbitrator, resulting from any such arbitration, shall be final and binding
upon Zions Bancorp and the Equity Holders, on whose behalf the Escrow Agent
shall immediately be instructed in writing in accordance therewith or, in the
event of failure to be so instructed, the Escrow Agent may rely upon written
instructions signed by the arbitrator.
19. DEFINITIONS
Capitalized terms not defined herein shall be defined according to
definitions in the Plan of Reorganization.
- 9 -
20. INTEGRATION
This instrument is the entire agreement of the parties hereto. The
Escrow Agent shall have no duty to know or determine the performance or
nonperformance of any provision of any agreement between or with the other
parties hereto, and the original copy or a copy of any such agreement deposited
with the Escrow Agent shall not bind it in any manner. The Escrow Agent assumes
no responsibility for the validity or sufficiency of any documents or papers or
payments deposited or called for hereunder except as may be expressly and
specifically set forth in the Escrow Agreement.
- 10 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ZIONS BANCORPORATION
Attest: By:
------------------------------------- ----------------------------
Xxxxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
Assistant Secretary Executive Vice President,
Chief Financial Officer and
Secretary
CITIZENS BANCO, INC.
Attest: By:
------------------------------------- ----------------------------
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Treasurer and Secretary Chairman and President
ZIONS FIRST NATIONAL BANK
Attest: By:
------------------------------------- ----------------------------
Xxxxx X. Xxxxxxx
Executive Vice President
The undersigned hereby consents to serve as Agent for Equity Holders hereunder
and to discharge the responsibilities allocated to the Agent for Equity Holders
hereunder (including without limitation sections 18.1 and 18.2 hereunder) with
due care and in a fair and responsible manner.
------------------------------
XXXXXX X. XXXXXXXX
Witness:
-----------------------------
- 11 -
SCHEDULE A
ANY CLAIM ON BEHALF OF PROFESSIONAL BANK CONSULTANTS, INC. OR XXXX X. XXXXX TO A
FINDER'S FEE, BROKERAGE COMMISSION, OR COMPENSATION FOR FINANCIAL OR ADVISORY
SERVICES IN CONNECTION WITH THE SALE OR MERGER OF CITIZENS BANCO, INC. OR ANY
AFFILIATE TO OR WITH ZIONS BANCORPORATION OR ANY AFFILIATE.
- 12 -
EXHIBIT V
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into this
[________] day of [_______], 1998, by and between XXXXXX X. XXXXX ("Executive")
and VECTRA BANK COLORADO, NATIONAL ASSOCIATION, a national banking association
organized under the laws of the United States ("Resulting Bank")
W I T N E S S E T H T H A T :
WHEREAS, the Agreement and Plan of Reorganization (the "Plan") dated as
of August 12, 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
Denver, Colorado, Resulting Bank, Citizens Banco, Inc., a Colorado corporation
having its principal office in Westminster, Colorado, and Citizens Bank, a
banking corporation organized under the laws of the State of Colorado (the
"Bank"), provides that the Bank will be merged with and into Resulting Bank;
WHEREAS, Executive is President and Chief Executive Officer of the
Bank;
WHEREAS, Resulting Bank desires to secure the employment of Executive
upon consummation of the transactions contemplated in the Plan;
WHEREAS, Executive is desirous of entering into the Agreement for such
periods and upon the terms and conditions set forth herein; and
WHEREAS, to assist in achieving the objectives of the transactions
described in the Plan, section 4.9 of the Plan contemplates that Executive will
enter into an employment agreement as a condition to the consummation of the
transactions described therein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agree ments hereinafter set forth, the parties agree as follows:
1. Employment; Responsibilities and Duties.
(a) Resulting Bank hereby agrees to employ Executive, and Executive
hereby agrees to serve as [ ] of Resulting Bank and of any depository
institution which is successor-in-interest thereto ("Resulting Bank" hereafter
to include any depository institution which is successor-in-interest thereto)
during the Term of Employment. Executive shall have primary management
responsibility for lending, deposit gathering, and other banking activities of
Resulting Bank within the community formerly served by the Bank and shall have
such other 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 president or chief executive
officer 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 president or
chief executive officer of Resulting Bank, hold such other directorships or
part-time academic appointments or have such other business affiliations as
would otherwise be prohibited under this section 1.
2. Term of Employment.
(a) The term of this Agreement ("Term of Employment") shall be the
period com mencing on the date as of which this Agreement has been executed (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), (iv), or (v) of this section 2(a), at any time,
upon the thirtieth day following notice to Executive.
- 2 -
(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 Termi nation 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 not be less than the aggregate salary paid to
Executive by the Bank as of January 1, 1998. Salary shall be payable in
accordance with the normal payroll practices of Resulting Bank with respect to
executive personnel as presently in effect or as they may be modified by
Resulting Bank from time to time.
(ii) During the Term of Employment Executive shall be eligible
to be considered for salary increases, upon review, in accordance with the
compensation policies of Resulting Bank with respect to executive personnel as
presently in effect or as they may be modified by Resulting Bank from time to
time.
(b) Employee Benefit Plans or Arrangements. During the Term of
Employment, Executive shall be entitled to participate in all employee benefit
plans of Resulting Bank, as presently in effect or as they may be modified 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.
- 3 -
(i) 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 January 1, 1998.
(ii) Notwithstanding any other provision of the vacation and
sick leave policy of Resulting Bank, for each year-end set forth below,
Executive will be permitted to carry over the lesser of his actual accrued but
unused days of Vacation or the following number:
from 1998 into 1999 45 days
from 1999 into 2000 30 days
from 2000 into 2001 15 days
Thereafter, Executive must comply with all provisions of Resulting Bank's
vacation and sick leave policy.
(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.
4. Confidential Business Information; Non-Competition.
(a) Executive acknowledges that certain business methods, creative
techniques, and technical data of Zions Bancorp and Resulting Bank and their
affiliates and the like are deemed by Resulting Bank to be and are in fact
confidential business information either of Zions Bancorp or Resulting Bank or
their affiliates or are entrusted to third parties. Such confidential
information includes but is not limited to procedures, methods, sales
relationships developed while in the service of Resulting Bank or its
affiliates, knowledge of customers and their require ments, marketing plans,
marketing information, studies, forecasts, and surveys, competitive analyses,
mailing and marketing lists, new business proposals, lists of vendors,
consultants, and other persons who render service or provide material to Zions
Bancorp or Resulting Bank or their affiliates, and compositions, ideas, plans,
and methods belonging to or related to the affairs of Zions Bancorp or Resulting
Bank or their affiliates. In this regard, Resulting Bank asserts proprietary
rights in all of its business information and that of its affiliates except for
such information as is clearly in the public domain. Notwithstanding the
foregoing, information that would be generally known or available to persons
skilled in Executive's fields shall be considered to be "clearly in the public
domain" for the purposes of the preceding sentence. Executive agrees that he
will not disclose or divulge to any third party, except as may be 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
- 4 -
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, Denver 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.
(d) It is the desire and intent of the parties that the provisions of
this section 4 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each juris diction in which enforcement is
sought. Accordingly, if any particular provision of this section 4 shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made. In
addition, should any court determine that the provisions of this section 4 shall
be unenforceable with respect to scope, duration, or geographic area, such court
shall be empowered to substitute, to the extent enforceable, provisions similar
hereto or other provisions so as to provide to Resulting Bank, to the fullest
extent permitted by applicable law, the benefits intended by this section 4.
(e) As used herein, "Market Area" shall mean the Colorado Counties of
Xxxxx, Arapahoe, Boulder, Denver, Douglas, Jefferson, and Weld.
5. Life Insurance.
(a) In consideration for the sum of $50,000 paid to Resulting Bank on
the Commencement Date, Resulting Bank hereby assigns to Executive all right,
title, and interest in and to the benefits of that certain split-dollar life
insurance policy on the life of Executive owned by the Bank and acquired by
Resulting Bank in the Bank Merger ("the Insurance Policy").
- 5 -
Executive shall designate to Resulting Bank the party or parties to whom he
desires the benefits to be paid. Absent such designation, the benefits will paid
to Executive's estate.
(b) 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 other 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:
If to Resulting Bank:
Vectra Bank Colorado, N.A.
0000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxx
Chairman and 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
- 6 -
If to Executive:
Xx. Xxxxxx X. Xxxxx
[___________________]
[___________________]
[___________________]
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
8. Assignment. Neither party may assign this Agreement or any rights or
obliga tions hereunder without the consent of the other party.
9. Governing Law. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Colorado, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate Denver County, Colorado 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 he
or it may be served with process in any action with respect to this Agreement or
the transactions contem plated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
state of Colorado. Each of the parties irrevocably and uncondi tionally waives
and agrees, to the fullest extent permitted by law, not to plead any objection
that it may now or hereafter have to the laying of venue or the convenience of
the forum of any action or claim with respect to this Agreement or the
transactions contemplated thereby brought in the courts aforesaid.
10. Entire Agreement. This Agreement constitutes the entire
understanding between Resulting Bank and Executive relating to the subject
matter hereof. Any previous agreements or understandings between the parties
hereto or between Executive and the Bank or any of its affiliates or Resulting
Bank or any of its affiliates regarding the subject matter hereof, including
without limitation the terms and conditions of employment, compensation,
benefits, retirement, competition following employment, and the like, are merged
into and superseded by this Agreement. Neither this Agreement nor any provisions
hereof can be modified, changed, discharged, or terminated except by an
instrument in writing signed by the party against whom any waiver, change,
discharge, or termination is sought.
11. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever:
(a) the validity, legality, and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement contain ing any such provision held to be invalid,
illegal, or unenforceable) shall not in any way be affected or impaired thereby;
and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provisions held to be invalid, illegal, or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal, or unenforceable.
12. Arbitration. Subject to the right of each party to seek specific
performance (which right shall not be subject to arbitration), if a dispute
arises out of or related to this Agreement, or the breach thereof, such dispute
shall be referred to arbitration in accordance with
- 7 -
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.
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.
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION
Attest: By:
------------------------- ------------------------
- 8 -
XXXXXX X. XXXXX
Witness:
------------------------- ------------------------
- 9 -
EXHIBIT VI
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") made and entered into this
[________] day of [________] 1998, by and between XXXXXX X. XXXXXXXX
("Xxxxxxxx") and VECTRA BANK COLORADO, NATIONAL ASSOCIATION, a national banking
association having its head office in Denver, Colorado ("Vectra")
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 August 12, 1998, by and between Zions Bancorporation ("Zions Bancorp"), Val
Cor Bancorporation, Inc. ("Val Cor"), Vectra, Citizens Banco, Inc. (the
"Company"), and Citizens Bank (the "Bank") provides that the Company will be
merged into Val Cor and that the Bank will be merged with and into Vectra (the
"Bank Merger");
WHEREAS, Xxxxxxxx is the Chairman and President of the Company and
Chairman of the Bank;
WHEREAS, Vectra desires to secure the services of Xxxxxxxx upon
consummation of the transactions contemplated in the Plan;
WHEREAS, Xxxxxxxx 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 Xxxxxxxx will
enter into a consulting 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. Responsibilities and Duties.
(a) Vectra will maintain Xxxxxxxx'x existing office at the Bank for his
occupancy and use for a period of not less than six months following the
Commencement Date. For a period which will not (without the consent of Vectra)
be less than three months nor (without the consent of Xxxxxxxx) be greater than
six months from the Commencement Date, Xxxxxxxx will maintain a work schedule at
the former premises of the Bank substantially similar to that which he
maintained for the year preceding the Commencement Date. From the expiration of
such period until the Termination Date, Xxxxxxxx shall serve as a consultant to
Vectra on such part-time basis as shall be mutually acceptable to Xxxxxxxx and
Vectra. The focus of his duties will be the facilitation of a smooth transition
of customers, employees, and systems to Vectra. In his capacity as a consultant
to Vectra, Xxxxxxxx shall provide advice and counsel to the management of Vectra
upon request or as otherwise agreed between him and management of Vectra.
(b) While considering, analyzing, or discussing the business of Vectra,
Xxxxxxxx shall devote his best efforts to the performance of his
responsibilities and duties as a consultant to Vectra.
(c) Xxxxxxxx shall consider and render advice on matters related to
Vectra in a manner designed to serve the best interests of Vectra and shall at
all times act in the best interests of Vectra.
2. Term of Agreement.
(a) The term of this Agreement ("Term of Agreement") shall be the
period com mencing on the date as of which this Agreement has been executed (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 Agreement shall be extended by mutual written agreement of Xxxxxxxx and
Vectra;
(ii) the death of Xxxxxxxx, if such death occurs within eighteen
months of the Commencement Date;
(iii) Xxxxxxxx'x inability to perform his duties hereunder, as a
result of physical or mental disability as reasonably determined by the personal
physician of Xxxxxxxx, 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
Agreement; or
(iv) the termination of this Agreement by Vectra "for cause," which
shall mean one or more of the following:
(A) any willful or gross misconduct by Xxxxxxxx with respect
to the business and affairs of Vectra;
(B) the conviction of Xxxxxxxx of a felony (after the earlier
of the expiration of any applicable appeal period without perfection of an
appeal by Xxxxxxxx or the denial of any appeal as to which no further appeal or
review is available to Xxxxxxxx), whether or not committed in the course of his
duties pursuant to this Agreement or in any way related to Vectra;
(C) Xxxxxxxx'x willful neglect, failure, or refusal to carry
out his duties hereunder in a reasonable manner; or
(D) the breach by Xxxxxxxx of any agreement contained in
section 1 or section 4 hereof, which breach is material and adverse to Vectra;
or (v) Xxxxxxxx'x resignation from his position as a consultant to Vectra; or
(vi) the termination of this Agreement by Vectra "without cause,"
which shall be for any reason other than those set forth in subsections (i),
(ii), (iii), or (iv) of this section 2, at any time, upon the thirtieth day
following notice to Xxxxxxxx.
(b) In the event that the Term of Agreement shall be terminated for any
reason other than that set forth in section 2(a)(vi) hereof, Xxxxxxxx shall be
entitled to receive any compensation due him pursuant to the terms of this
Agreement as of the date of any such event.
(c) In the event that the Term of Agreement shall be terminated for the
reason set forth in section 2(a)(vi) hereof, Xxxxxxxx shall be entitled to
receive as of the date of any such
- 2 -
event all compensation which would have been due him pursuant to the terms of
this Agreement for the full Term of Agreement.
3. Compensation. For the services to be performed by Xxxxxxxx for
Vectra under this Agreement, Xxxxxxxx shall be compensated in the following
manner:
(a) Consulting Fee. During the Term of Agreement, Vectra shall pay
Xxxxxxxx an annual consulting fee which shall be $100,000 for the first year and
$50,000 for each of the second and third years. Each of said annual consulting
fees shall be payable in one lump sum on the following dates:
the later of December 1, 1998
or the Commencement Date $100,000
December 1, 1999 50,000
December 1, 2000 50,000
In addition, Xxxxxxxx will be granted all of the furniture, wall hangings, and
other appointments currently in his office at the Bank, including without
limitation (i) one French desk, one executive chair, and two side chairs, (ii)
two wooden file cabinets and a three-shelf bookcase, (iii) golf-club wall
hangings and miscellaneous pictures, and (iv) one bronze sculpture of water fowl
in flight.
(b) Withholding. All compensation to be paid to Xxxxxxxx hereunder
shall be subject to required withholding and other taxes.
4. Confidential Business Information; Non-Competition.
(a) Xxxxxxxx acknowledges that certain business methods, creative
techniques, and technical data of Zions Bancorp and Vectra and their affiliates
and the like are deemed by Zions Bancorp and Vectra to be and are in fact
confidential business information either of Zions Bancorp or Vectra 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 Zions Bancorp or Vectra or their 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 Vectra
or their affiliates, and compositions, ideas, plans, and methods belonging to or
related to the affairs of Zions Bancorp or Vectra or their affiliates. In this
regard, each of Zions Bancorp and Vectra 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 in Xxxxxxxx'x position
shall be considered to be "clearly in the public domain" for the purposes of the
preceding sentence. Xxxxxxxx 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 Zions
Bancorp or Vectra, nor shall he use to the detriment of Zions Bancorp or Vectra
or their affiliates or use in any business or on behalf of any business
competitive with or substantially similar to any business of Zions Bancorp or
Vectra or their affiliates, any confidential business information obtained
during the course of his relationship with Vectra. The foregoing shall not be
construed as restricting Xxxxxxxx from disclosing such information to the
employees of Vectra or its affiliates.
- 3 -
(b) Xxxxxxxx hereby agrees that from the Commencement Date until the
second anniversary of the Commencement Date, Xxxxxxxx will not (i) engage in the
banking business other than on behalf of Vectra or its affiliates within the
Designated 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
Vectra or its affiliates) engaged in the banking business in the Designated
Area, or (iii) directly or indirectly solicit or otherwise intentionally cause
any employee, officer, or member of the respective Boards of Directors of Vectra
or Zions Bancorp or any of their affiliates to engage in any action prohibited
under (i) or (ii) of this section 4(b); provided that the ownership by Xxxxxxxx
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 Xxxxxxxx'x obligations under this section 4(b).
(c) Xxxxxxxx acknowledges and agrees that irreparable injury will
result to Vectra and Zions Bancorp in the event of a breach of any of the
provisions of this section 4 (the "Designated Provisions") and that Vectra and
Zions Bancorp 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 Vectra or Zions Bancorp may
have, Vectra and Zions Bancorp 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, Denver County,
Colorado, or elsewhere, to restrain the violation or breach thereof by Xxxxxxxx
or any affiliates, agents, or any other persons acting for or with Xxxxxxxx in
any capacity whatsoever, and Xxxxxxxx submits to the jurisdiction of such court
in any such action.
(d) It is the desire and intent of the parties that the provisions of
this section 4 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each 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 juris diction 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 Vectra and Zions Bancorp, to the
fullest extent permitted by applicable law, the benefits intended by this
section 4.
(e) As used herein, "Designated Area" shall mean the Colorado Counties
of Xxxxx, Arapahoe, Boulder, Denver, Douglas, Jefferson, and Weld.
5. Life Insurance Policy.
(a) Pursuant to the following payment schedule, Xxxxxxxx will repay the
prepaid premium advanced by the Bank on a certain split-dollar, last-to-die life
insurance policy on the lives of Xxxxxxxx and Xxxxxx X. Xxxxxxxx ("Joayne") in
the amount of $71,340 (the "Insurance Policy"):
December 1, 1998 $20,000
- 4 -
December 1, 1999 20,000
December 1, 2000 20,000
December 1, 2001 11,340
(b) Upon completion of the payment of the consideration set forth in
subsection (a) of this Section 5, Vectra shall release to the Xxxxxxxx Trust the
assignment of the cash value of the policy that Xxxxxxxx and Joayne granted to
the Bank and shall return the Insurance Policy.
(c) Should Xxxxxxxx and his wife both die before December 1, 2001,
Vectra shall receive payment as described in the assignment.
6. 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 communi cations shall be addressed to
the appropriate address of each party as follows:
If to Vectra:
Vectra Bank Colorado, N.A.
0000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxx
President and 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 Xxxxxxxx:
Xx. Xxxxxx X. Xxxxxxxx
[_____________________]
[_____________________]
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
7. Assignment. Neither party may assign this Agreement or any rights or
obliga tions hereunder without the consent of the other party.
8. Governing Law. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Colorado, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate Denver County, Colorado 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 he
or it may
- 5 -
be served with process in any action with respect to this Agreement or the
transactions contem plated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
state of Colorado. Each of the parties irrevocably and uncondi tionally waives
and agrees, to the fullest extent permitted by law, not to plead any objection
that he or 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.
9. Entire Agreement. This Agreement constitutes the entire
understanding between Vectra and Xxxxxxxx relating to the subject matter hereof.
Any previous agreements or under standings between the parties hereto or between
Xxxxxxxx and the Company or Vectra regarding the subject matter hereof,
including without limitation the terms and conditions of compensation, benefits,
competition following employment, and the like, are merged into and superseded
by this Agreement. Neither this Agreement nor any provisions hereof can be
modified, changed, discharged, or terminated except by an instrument in writing
signed by the party against whom any waiver, change, discharge, or termination
is sought.
10. 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.
11. 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 Utah. 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
- 6 -
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.
12. 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.
13. Affiliation. A company will be deemed to be "affiliated" with
Vectra or Zions Bancorp 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.
14. 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.
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION
Attest: By:
----------------------------- ---------------------------------
Xxx X. Xxxx Xxxx X. Xxxx
Chief Financial Officer President and Chief Executive
and Secretary Officer
XXXXXX X. XXXXXXXX
Witness:
--------------------------- ------------------------------------
- 7 -
EXHIBIT X
WAIVERS AND RELEASES OF HOLDERS OF CLASS A COMMON STOCK
WAIVER AND RELEASE
THIS WAIVER AND RELEASE is made and entered into and effective as of
this [ ] day of [ ], 1998, by and between Citizens Banco, Inc., a Colorado
corporation ("CBI"), and the shareholder of CBI named on page 3 below
("Shareholder").
RECITALS
A. Shareholder owns shares of the Class A common stock, $1.00 par
value, of CBI ("Class A Common Stock").
B. On December 13, 1989, the Board of Directors of CBI authorized
the issuance of Four Year Mandatory Convertible Debentures Due
1993 in the aggregate amount of $600,000 (the "Debentures"),
which were to be convertible into an aggregate of 33,150
shares of Class B nonvoting common stock, no par value ("Class
B Common Stock") that had not yet been authorized.
C. CBI issued the Debentures on December 20, 1989, and on
December 13, 1993, the holders of the Debentures extended
their term for an additional four years as permitted pursuant
to the terms of the Debentures.
D. On January 22, 1990, the shareholders of CBI approved amending
CBI's Articles of Incorporation to classify the then
outstanding shares of CBI's common stock as Class A Common
Stock and to authorize the Class B Common Stock.
E. The amendment to CBI's Articles of Incorporation relating to
the shareholder approval of the Class B Common Stock
("Articles of Amendment") was not filed with the Colorado
Secretary of State until July 17, 1998.
F. On or about December 10, 1997, the holders of the Debentures
purported to convert the Debentures into Class B Common Stock
and were thereafter treated in every respect as holders of
Class B Common Stock even though the shares of Class B Common
Stock had not yet been authorized under Colorado law by filing
the Articles of Amendment.
G. On August 12, 1998, CBI entered into an Agreement and Plan of
Reorganization ("Agreement") with Zions Bancorporation, a Utah
corporation ("Zions Bancorp"), and subsidiaries of Zions
Bancorp, whereby CBI shall merge with and into a subsidiary of
Zions Bancorp ("Merger"), as described in the Proxy State
ment/ Prospectus dated ________________, 1998 ("Proxy
Statement/Prospectus").
H. The Agreement provides that the former Debenture holders shall
be entitled to exchange their contractual rights under the
Debentures for an aggregate of 33,150 shares of Class B Common
Stock and an aggregate cash payment of $[ ], as settlement of
all their rights under the Debentures (the "Exchange Offer")
prior to the consummation of the Merger, and that the holders
of Class B Common Stock shall then be entitled to receive,
along with holders of Class A Common
Stock, shares of Zions Bancorp common stock, no par value
("Zions Bancorp Stock"), upon consummation of the Merger.
I. The Agreement provides that a condition to the Merger is the
receipt of Waivers and Releases from all holders of Class A
Common Stock and that the Merger will not be consummated on
the terms set forth in the Agreement unless the holders of
Class A Common Stock ratify and approve the Exchange Offer.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto intending to be
legally bound hereby agree and acknowledge as follows:
A.Shareholder has received and read the Proxy Statement/Prospectus
relating to the Exchange Offer and the Merger. Shareholder understands the
contents of the Proxy Statement/Prospectus as it relates to the Exchange Offer
and the Merger.
B.Shareholder hereby releases and holds harmless CBI and its officers
and directors and its or their successors and assigns from and in respect of any
and all claims, demands, losses, costs, expenses, obligations, liabilities,
recoveries, actions, causes of action, suits, deficiencies and damages,
including interest, penalties and attorneys' fees, known or unknown, whether
arising in law or equity, that Shareholder has or may incur against CBI or its
officers and directors, whether for damages or equitable relief, in any way
related to all actions taken by such persons involving the Exchange Offer and
the Merger. In addition, Shareholder hereby waives any and all rights to bring
any suit, action or proceeding, either at law or in equity, for any judgment
against CBI and its officers and directors for any liability, expense or damage
arising from or in connection with the transactions described herein.
C.Shareholder represents that he or she has not assigned, transferred,
pledged or hypothecated, or purported to assign, transfer, pledge or
hypothecate, to any entity or individual, any of the claims which it may have
had in the subject matter of this Waiver and Release. Shareholder agrees to
indemnify and hold harmless CBI and its officers and directors against any
claim, demand, debt, loss, obligation, liability, costs, expense (including
reasonable attorneys' fees), right of action or cause of action, based on,
arising out of, or in connection with, any such transfer, assignment, pledge or
hypothecation or purported transfer, assignment, pledge or hypothecation.
D.This Waiver and Release represents a compromise of potential claims
which shall not be construed as an admission of CBI of any wrongful acts or
liability, and CBI specifically disclaims any liability to Shareholder, or any
other person.
E.Shareholder acknowledges that he or she has been given the
opportunity to consult with legal counsel of his or her choice in connection
with the execution and delivery of this Waiver and Release, and that he or she
understands fully (i) the terms of this Waiver and Release, (ii) the
consequences hereof and (iii) that this is a full, complete and final release of
CBI and its officers and directors, as well as its or their successors and
assigns, relating to the Exchange Offer and the Merger.
F.This Waiver and Release shall inure to the benefit of CBI and its
officers, directors, successors and assigns, and shall be binding upon
Shareholder and his or her successors and assigns.
- 2 -
G.If an action is instituted to enforce this Waiver and Release, the
party not prevailing shall pay to the party prevailing all costs and expenses
including reasonable attorneys' fees incurred by such prevailing party in
connection with said action.
H.This Waiver and Release shall be governed by and construed in
accordance with the laws of the State of Colorado.
I.This Waiver and Release is made and furnished in good faith and has
not been made under or induced by any fraud, duress or undue influence exercised
by CBI or any other person.
J.This Waiver and Release contains the entire, integrated agreement of
the parties with respect to the subject matter hereof and supersedes any and all
prior negotiations with respect hereto.
- 3 -
IN WITNESS WHEREOF, this Waiver and Release was executed by the parties
on the date above written.
SHAREHOLDER:
---------------------------------------
Printed Name:
--------------------------
CITIZENS BANCO, INC.
By:
------------------------------------
Its:
--------------------------------
Title:
------------------------------
- 4 -
EXHIBIT XI
WAIVERS AND RELEASES OF HOLDERS OF CLASS B RIGHTS
WAIVER AND RELEASE
THIS WAIVER AND RELEASE is made and entered into and effective as of
this [_______] day of [______], 1998, by and between Citizens Banco, Inc., a
Colorado corporation ("CBI"), and the person named on page 3 below ("Holder").
RECITALS
A. On December 13, 1989, the Board of Directors of CBI authorized the
issuance of Four Year Mandatory Convertible Debentures Due 1993 in the aggregate
amount of $600,000 (the "Debentures"), which were to be convertible into an
aggregate of 33,150 shares of Class B common stock that had not yet been
authorized.
B. CBI issued a Debenture to Holder on December 20, 1989, and on
December 13, 1993, Holder extended its term for an additional four years as
permitted pursuant to the terms of the Debenture.
C. On January 22, 1990, the shareholders of CBI approved amending CBI's
Articles of Incorporation to classify the then outstanding shares of CBI's
common stock as Class A Common Stock and to authorize the Class B Common Stock.
D. The amendment to CBI's Articles of Incorporation relating to the
shareholder approval of the Class B Common Stock ("Articles of Amendment") was
not filed with the Colorado Secretary of State until July 17, 1998.
E. On or about December 10, 1997, both holders of the Debentures
purported to convert the Debentures into Class B Common Stock and were
thereafter treated in every respect as holders of Class B Common Stock even
though the shares of Class B Common Stock had not yet been authorized under
Colorado law by filing the Articles of Amendment.
F. On August 12, 1998, CBI entered into an Agreement and Plan of
Reorganization ("Agreement") with Zions Bancorporation, a Utah corporation
("Zions Bancorp"), and subsidiaries of Zions Bancorp, whereby CBI shall merge
with and into a subsidiary of Zions Bancorp ("Merger"), as described in the
Proxy Statement/ Prospectus dated [ ], 1998 ("Proxy Statement/Prospectus").
G. The Agreement provides that the former Debenture holders shall be
entitled to exchange their contractual rights under the Debentures for an
aggregate of 33,150 shares of Class B Common Stock and an aggregate cash payment
of $[ ], as settlement of all their rights under the Debentures (the "Exchange
Offer") prior to the consummation of the Merger, and that the holders of Class B
Common Stock shall then be entitled to receive, along with holders of CBI's
Class A common stock, $1.00 par value, ("Class A Common Stock"), shares of Zions
Bancorp common stock, no par value ("Zions Bancorp Stock"), upon consummation of
the Merger.
H. The Agreement provides that a condition to the Merger is the receipt
of Waivers and Releases from all former Holders and that the Merger will not be
consummated on the terms set forth in the Agreement unless the Holders execute
and deliver such Waivers and Releases.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto intending to be
legally bound hereby agree and acknowledge as follows:
1. Holder has received and read the Proxy Statement/Prospectus relating
to the Exchange Offer and the Merger. Holder understands the contents of the
Proxy Statement/ Prospectus as it relates to the Exchange Offer and the Merger.
2. Holder hereby agrees and acknowledges that the [_______] shares of
Class B Common Stock to be issued and the $[_______] in cash to be paid to
him/her pursuant to the Exchange Offer shall be in full discharge and settlement
of all rights and claims which the holder of such rights and former holders of
such Debentures may have, as well as any obligations which CBI may have to such
holders. At such time as such Holder accepts the shares of Class B Common Stock
and cash payment referred to in the preceding sentence, he/she hereby releases
and holds harmless CBI and its officers and directors, and its or their
successors and assigns, from and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, recoveries, actions, causes
of action, suits, deficiencies and damages, including interest, penalties and
attorneys' fees, known or unknown, whether arising in law or equity, that Holder
has or may incur against CBI or its officers and directors, whether for damages
or equitable relief, in any way related to all actions taken by such persons
involving the Exchange Offer and the Merger. In addition, Holder hereby waives
any and all rights to bring any suit, action or proceeding, either at law or in
equity, for any judgment against CBI and its officers and directors for any
liability, expense or damage arising from or in connection with the transactions
described herein.
3. Holder represents that he or she has not assigned, transferred,
pledged or hypothecated, or purported to assign, transfer, pledge or
hypothecate, to any entity or individual, any of the claims which it may have
had in the subject matter of this Waiver and Release. Holder agrees to indemnify
and hold harmless CBI and its officers and directors against any claim, demand,
debt, loss, obligation, liability, costs, expense (including reasonable
attorneys' fees), right of action or cause of action, based on, arising out of,
or in connection with, any such transfer, assignment, pledge or hypothecation or
purported transfer, assignment, pledge or hypothecation.
4. This Waiver and Release represents a compromise of potential claims
which shall not be construed as an admission of CBI of any wrongful acts or
liability, and CBI specifically disclaims any liability to Holder, or any other
person.
5. Holder acknowledges that he or she has been given the opportunity to
consult with legal counsel of his or her choice in connection with the execution
and delivery of this Waiver and Release, and that he or she understands fully
(i) the terms of this Waiver and Release, (ii) the consequences hereof and (iii)
that this is a full, complete and final release of CBI and its officers and
directors, as well as its or their successors and assigns, relating to the
Exchange Offer and the Merger.
6. This Waiver and Release shall inure to the benefit of CBI and its
officers, directors, successors and assigns, and shall be binding upon Holder
and his or her successors and assigns.
- 2 -
7. If an action is instituted to enforce this Waiver and Release, the
party not prevailing shall pay to the party prevailing all costs and expenses
including reasonable attorneys' fees incurred by such prevailing party in
connection with said action.
8. This Waiver and Release shall be governed by and construed in
accordance with the laws of the State of Colorado.
9. This Waiver and Release is made and furnished in good faith and has
not been made under or induced by any fraud, duress or undue influence exercised
by CBI or any other person.
10. This Waiver and Release contains the entire, integrated agreement
of the parties with respect to the subject matter hereof and supersedes any and
all prior negotiations with respect hereto.
- 3 -
IN WITNESS WHEREOF, this Waiver and Release was executed by the parties
on the date above written.
HOLDER:
------------------------------------
Printed Name:
-----------------------
CITIZENS BANCO, INC.
By:
---------------------------------
Its:
-----------------------------
Title:
---------------------------
- 4 -
