EXHIBIT 10.7
FORM OF CONSIDERATION RETENTION AND PAYOUT AGREEMENT BETWEEN VECTRA BANK
COLORADO, NATIONAL ASSOCIATION AND XXXXXX X. XXXXX
This CONSIDERATION RETENTION AND PAYOUT AGREEMENT (this "Agreement")
made and entered into this [ ] day of [ ], 2001, by and between XXXXXX X. XXXXX,
an adult resident of the State of Colorado ("White"), and VECTRA BANK COLORADO,
NATIONAL ASSOCIATION, a national banking association organized under the laws of
the United States ("Vectra Bank") (White and Vectra Bank together being referred
to herein as the "Parties")
WITNESSETH THAT:
WHEREAS, the Agreement and Plan of Reorganization (the "Plan") dated as
of July 10, 2001 by and among Zions Bancorporation, a Utah corporation having
its principal office in Salt Lake City, Utah ("Zions Bancorp"), Vectra Bank,
Minnequa Bancorp, Inc., a Colorado corporation having its principal office in
Pueblo, Colorado (the "Company"), The Minnequa Bank of Pueblo, a banking
corporation organized under the laws of the State of Colorado (the "Bank"), and
White provides that the Bank will be merged with and into Vectra Bank;
WHEREAS, White is associated with various persons and entities who among
themselves have beneficial ownership of and voting control over shares of the
Company that constitute in the aggregate in excess of 78 percent of the
outstanding voting stock of the Company, and the Company has beneficial
ownership and voting control over all of the outstanding voting stock of the
Bank;
WHEREAS, Vectra Bank is unwilling to consummate the transactions
contemplated by the Plan unless, among other conditions as provided in the Plan,
White shall have executed and delivered this Agreement; and
WHEREAS, White is willing to agree to allow Vectra Bank to retain a
portion of the cash consideration which would have otherwise been payable to
White under the Non-Competition Agreement of even date herewith between Vectra
Bank and White (the "Non-Competition Agreement"), in exchange for Vectra Bank's
conditional promise make a future payment to White, as set forth in this
Agreement, and in exchange for Vectra Bank's consummating the transactions
contemplated by the Plan.
NOW, THEREFORE, incorporating the foregoing recitals herein, for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Parties hereto agree as
follows:
1. RETAINED CONSIDERATION AND FUTURE PAYMENT.
(a) White hereby agrees that the $1,000,000 which would have otherwise
been payable to the account of White by Vectra Bank pursuant to section 2(b) of
the Non-Competition Agreement (the "Retained Consideration") shall be retained
by Vectra Bank and not remitted to White except pursuant to the terms and
conditions of this Agreement. Until so remitted, the Retained Consideration
shall remain the property of Vectra Bank for Vectra Bank to use or dispose at
its sole discretion and, until so remitted, White shall at no time have any
right to or interest in the Retained Consideration other than as set forth in
this Agreement.
(b) As soon after the expiration of the Loss Period as is
administratively practicable, Vectra Bank shall make a cash payment to White
(the "Deferred Payment"), by wire transfer or other method as may be agreed by
the Parties, of $1,000,000 minus 75 percent of the Unexpected Loss (as defined
below). If 75 percent of the Unexpected Loss is equal to or greater than
$1,000,000, Vectra Bank shall not be obligated to make any payment under this
Agreement. If 75 percent of the Unexpected Loss is less than zero, Vectra Bank's
obligation under this Agreement is limited to $1,000,000. Upon compliance with
this section 1(b), the obligations of Vectra Bank under section 2(b) of the
Non-Competition Agreement shall be discharged in full.
(c) For purposes of this Agreement, the following terms shall have the
following meanings:
(1) "Charge-Off" means, for any loan, the charge-offs made by
Vectra Bank during the Loss Period pursuant to Vectra Bank's charge-off policies
in force at the time of such charge-off.
(2) "Expected Loss" means, for any loan, the expected loss amount
listed for such loan in Exhibit A of this Agreement.
(3) "Loan Pool" means those loans listed in Exhibit A of this
Agreement.
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(4) "Loss Period" means the period between the day after the
Effective Date (as defined in the Plan) and the third anniversary of the
Effective Date (inclusive).
(5) "Recovery" means, for any loan, the net recoveries realized by
Vectra Bank during the Loss Period pursuant to Vectra Bank's recovery policies
in force at the time of such recovery.
(6) "Tax-Effected" means adjusted for the combined effect of
federal, state, and local income taxes by reducing the amount of a loss or
recovery by the product of that loss or recovery and the highest combined
federal, state, and local marginal tax rate applicable to Vectra Bank.
(7) "Unexpected Loss" means the Tax-Effected sum of the amounts, if
any, by which each Charge-Off attributable to a loan in the Loan Pool exceeds
the Expected Loss for such loan, reduced by the Tax-Effected sum of the amounts,
if any, of each Recovery attributable to a loan in the Loan Pool.
2. ADMINISTRATION.
(a) Within ten business days after making any Charge-Off which
individually or when aggregated with prior Charge-Offs that have not been
identified in a prior report provided to White under this section 2(a), exceeds
$133,333 on a Tax-Effected Basis, Vectra Bank will provide a report to White
identifying such Charge-Off or Charge-Offs.
(b) Within ten business days after the end of each of the six
consecutive six-month periods that comprise the first three years of the Loss
Period, and within ten business days after the end of the Loss Period, Vectra
Bank will provide a report to White detailing the Charge-Offs it made during
such period.
3. 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 Vectra Bank:
Vectra Bank Colorado, National Association
0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0-0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
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 White:
Xx. Xxxxxx X. Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxx 00000
With a required copy to:
Xxxxxx X. Banner, Esq.
Banner, Xxxxxx, Xxxxxx & Xxxxxx, P.C.
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
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4. ASSIGNMENT. Neither Party may assign this Agreement or any rights or
obligations hereunder without the consent of the other Party.
5. 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 each of such venues for such a proceeding and agrees
that he or it may be served with process in any action with respect to this
Agreement or the transactions contemplated thereby by certified or registered
mail, return receipt requested, or to its registered agent for service of
process in the State of 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.
6. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between Vectra Bank and White relating to the subject matter of this Agreement.
Any previous agreements or understandings between the Parties hereto or between
White and the Bank or any of its affiliates or Vectra Bank or any of its
affiliates regarding the subject matter of this Agreement are merged into and
superseded by this Agreement. Neither this Agreement nor any provisions of this
Agreement 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.
7. COSTS OF LITIGATION. In the event litigation is commenced to enforce
any of the provisions of this Agreement, or to obtain declaratory relief in
connection with any of the provisions of this Agreement, the prevailing Party
shall be entitled to recover reasonable attorneys' 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 attorneys' fees.
8. 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 of this
Agreement 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.
9. AFFILIATION. A company will be deemed to be "affiliated" with Vectra
Bank, Zions Bancorp, or the Bank according to the definition of "Affiliate" set
forth in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended.
10. SEVERABILITY. If any provision or provisions of this Agreement shall
be adjudicated 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.
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11. 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 of this Agreement.
12. CAPITALIZED TERMS. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Plan.
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
By: ____________________________
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
XXXXXX X. XXXXX
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EXHIBIT A
TO CONSIDERATION RETENTION AND PAYOUT AGREEMENT
Loan Description Loan Amount Expected Loss Percentage Expected Loss Amount
---------------- ----------- ------------------------ --------------------
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