AGREEMENT
AGREEMENT (this "Agreement") dated January 23,
1996 among FIRST BANK SYSTEM, INC., a Delaware
corporation ("FBS"), ELEVEN ACQUISITION CORP., a Delaware
corporation and an indirect wholly-owned subsidiary of
FBS ("Acquisition"), FIRST INTERSTATE BANCORP, a Delaware
corporation ("FI"), and XXXXX FARGO & COMPANY, a Delaware
corporation ("Xxxxx").
WHEREAS, FBS, Acquisition and FI entered into
an Agreement and Plan of Merger dated as of November 5,
1995 (the "Merger Agreement") providing, upon the terms
and subject to the conditions contained in the Merger
Agreement, for Acquisition to be merged with and into FI
(the "Merger");
WHEREAS, in connection with the Merger
Agreement, FI and FBS entered into a Stock Option
Agreement dated as of November 5, 1995 (the "FI Option
Agreement") pursuant to which FI granted to FBS an
irrevocable option (the "FI Stock Option") to purchase
shares of FI Common Stock;
WHEREAS, in connection with the Merger
Agreement, FI and FBS entered into a Letter Agreement
dated November 5, 1995 (the "FI Fee Agreement") pursuant
to which FI agreed to pay FBS certain amounts under
certain circumstances;
WHEREAS, concurrently with the execution and
delivery of this Agreement FI is terminating the Merger
Agreement pursuant to Section 8.1(f) thereof and entering
into an agreement and plan of merger with Xxxxx (the
"Xxxxx Merger Agreement"); and
WHEREAS, certain litigation is pending between
the parties hereto;
NOW THEREFORE, in consideration of the
foregoing and the mutual agreements herein set forth, the
parties do hereby agree as follows:
1. Payments by FI to FBS. (a) FI irrevocably
and unconditionally agrees to pay FBS as early as
practicable on January 24, 1996, by wire transfer in
immediately available funds, $125,000,000;
(b) Upon the occurrence of an Acquisition
Event (as defined in the FI Fee Agreement), FI
irrevocably and unconditionally agrees to pay FBS, on the
date of such occurrence, by wire transfer in immediately
available funds, $75,000,000; and
(c) The payment pursuant to Section 1(a) of
this Agreement shall be in full satisfaction of FI s
obligations under the FI Option Agreement and, to the
extent provided in the Releases (as hereinafter defined),
in satisfaction of any claims that FBS may have against
FI and any other releasee for breach of the Merger
Agreement and any claims that FBS may have against Xxxxx
for tortious interference with the contractual or
prospective economic advantage resulting from the Merger
Agreement, and the payments pursuant to Sections 1(a) and
1(b) of this Agreement shall be in full satisfaction of
FI s obligations under the FI Fee Agreement.
2. Termination of Merger Agreement and Parent
Agreements. FBS, FI and Acquisition agree that the
Merger Agreement is hereby terminated by FI in accordance
with Section 8.1(f) thereof. FBS and FI further agree
that the Parent Fee Letter and the Parent Option
Agreement (as such terms are defined in the Merger
Agreement) are terminated and rendered null and void
effective immediately.
3. Termination of FI Option Agreement and FI
Fee Agreement. FBS and FI agree that (i) FBS shall have
no further rights under the FI Option Agreement and such
agreement shall be terminated and rendered null and void
effective immediately upon full and timely payment to FBS
of the amount referred to in Section 1(a) and (ii) FBS
shall have no further rights under the FI Fee Agreement
immediately upon full and timely payment to FBS of the
amounts referred to in Sections 1(a) and 1(b) hereof.
FBS and FI further agree that the FI Fee Agreement shall
remain in full force and effect until the timely payment
to FBS of the amount referred to in Section 1(b) hereof,
provided, however, that FBS agrees not to seek any
amounts under the FI Fee Agreement unless and until the
Xxxxx Merger Agreement is terminated without consummation
of an Acquisition Event involving Xxxxx. FBS and FI
further agree that if the Xxxxx Merger Agreement is
terminated after payment of the amount referred to in
Section 1(a) and prior to the payment to FBS of the
amount referred to in Section 1(b) hereof, $25 million of
the amount paid to FBS pursuant to Section 1(a) hereof
shall constitute payment pursuant to Section 2(a) of the
FI Fee Agreement.
4. Release; Withdrawal of Litigation,
Regulatory Filings and Protests. Each of FBS,
Acquisition, Xxxxx and FI shall execute releases
immediately upon execution of this Agreement,
substantially in the form attached hereto as Exhibits A,
B, C and D, as applicable (collectively the "Releases").
Each party hereto shall take all steps necessary promptly
to withdraw or otherwise finally terminate with
prejudice, without costs imposed on any party, all
litigation initiated by such party and to which the
Releases relate, including without limitation the cases
set forth on Schedule 4. In addition, each party hereto
will promptly withdraw any protest or opposition which it
has filed with the Board of Governors of the Federal
Reserve System or any other bank regulatory agency
concerning any application filed by any other party
hereto with any such agency. FBS further agrees that it
shall promptly following the execution of this Agreement
(i) withdraw its application filed with the Federal
Reserve Bank of Minneapolis on November 10, 1995 for
approval from the Federal Reserve Board of the Merger and
the transactions contemplated thereby and all
applications and/or notices filed with state regulatory
authorities in connection with the Merger and (ii)
withdraw or amend to be inapplicable to any merger
between FBS and FI or any acquisition by FBS of FI its
Registration Statement on Form S-4 (File No. 33-64447)
filed on November 21, 1995 with the Securities and
Exchange Commission, as amended by Amendment No. 1
thereto dated December 29, 1995.
5. Effect of Termination; Confidentiality.
(a) FBS, Acquisition and FI agree that notwithstanding
clause (ii) of Section 8.2 of the Merger Agreement, none
of FBS, Acquisition or FI shall have any liabilities for
any breach or alleged breach of the Merger Agreement,
including any willful breach. As provided in clause (i)
of said Section 8.2, Sections 6.2(b), 8.2 and 9.3 of the
Merger Agreement and the Confidentiality Agreement (as
defined in said Section 6.2(b)) shall survive the
termination of the Merger Agreement. Xxxxx hereby agrees
to be bound by the confidentiality undertakings and
agreements of the Confidentiality Agreement, insofar as
the Confidentiality Agreement relates to information
supplied by FBS or its representatives to FI that becomes
available to Xxxxx, to the same extent as FI is so
obligated pursuant thereto.
(b) Each of FBS and FI shall, as promptly
as practicable after the execution of this Agreement, (i)
return to the other party or destroy all Evaluation
Material (as such term is defined in the Confidentiality
Agreement with respect to such party) in accordance with
the terms of the Confidentiality Agreement, and (ii)
jointly instruct Xxxxxxxx Consulting ("Xxxxxxxx") (A) not
to issue its report with respect to technology
integration as provided for in its letter agreement with
FBS and FI (the "Xxxxxxxx Agreement") and (B) to return
to FBS or FI (as applicable) as promptly as practicable
the information provided by such party to Xxxxxxxx in
connection with the preparation of such report and to
destroy all materials derived from or containing such
information. Each of FBS and FI shall bear one-half of
the fees and expenses of Xxxxxxxx payable under the
Xxxxxxxx Agreement.
6. Indemnification. Xxxxx hereby agrees to
indemnify and hold harmless FBS and Acquisition and their
respective officers, directors, employees, agents and
advisors (the "FBS Parties") against any and all
liabilities, judgments, settlements, costs, reasonable
expenses (including legal fees) (collectively, "Losses")
arising out of or in connection with any claims
(including, but not limited to, claims that have been or
could have been asserted in actions pending prior to the
date hereof) by or on behalf of any FI securityholders
(or by any such securityholders on behalf or purportedly
on behalf of FI), arising out of or in connection with
the Merger Agreement, the FI Option Agreement, the FI Fee
Agreement, this Agreement or the transactions
contemplated thereby and hereby but, to the extent such
Losses arise out of acts or omissions of FBS, only to the
extent that such acts or omissions shall have been taken
prior to the date hereof or are contemplated by this
Agreement. FBS hereby agrees that it will, and will
cause its affiliates to, cooperate with Xxxxx in
connection with any litigation or claims for which
indemnification is sought pursuant to the preceding
sentence. FBS and Acquisition further agree that they
will not settle any such litigation without the prior
written consent of Xxxxx, which consent will not be
unreasonably withheld. Xxxxx also agrees to indemnify
the FBS Parties against all reasonable legal fees or
other expenses incurred in enforcing this Agreement. In
addition, FI agrees promptly to reimburse FBS for legal
expenses (not to exceed $225,000) incurred in connection
with any such securityholder litigation prior to the date
hereof.
7. Waiver of Jury Trial. TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT
ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE),
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY
ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
OUT OF OR BASED UPON THIS AGREEMENT, OR THE SUBJECT
MATTER HEREOF IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING OR WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE.
8. Validity; Due Authorization. Each party
hereto represents and warrants to the others that it is
duly authorized to execute and deliver this Agreement and
the relevant Release, that no further corporate
authorizations (including shareholder approvals or
approval under Section 203 of the Delaware General
Corporation Law) are required for such party s execution,
delivery and performance of this Agreement and the
relevant Release, and that this Agreement and such
Release is a valid and binding obligation of such party.
9. Specific Performance. The parties hereto
acknowledge that damages would be an inadequate remedy
for any breach of the provisions of this Agreement and
agree that the obligations of the parties hereunder shall
be specifically enforceable and no party shall take any
action to impede the others from seeking to enforce such
rights of specific performance.
10. Notices. All notices, requests, claims,
demands and other communications hereunder shall be
effective upon receipt, shall be in writing and shall be
delivered in person, by cable, telegram or telex, or by
facsimile transmission as follows: (i) if to Xxxxx,
addressed to Xxxxx Fargo & Co., 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, XX 00000 (Att: General Counsel) with a
copy to Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Att: H. Xxxxxx Xxxxx, Esq.), (ii) if to
FBS or Acquisition, addressed to First Bank System, Inc.,
000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
(Att: General Counsel) with a copy to Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (Att: Xxxxxx X. Xxxxxx, Esq.), (iii) if to FI,
addressed to First Interstate Bancorp, 000 Xxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, XX 00000 (Att: General Counsel) with
a copy to Skadden, Arps, Xxxxxxx & Xxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Att: Xxxx X. Xxxxx,
III, Esq.) or (iv) or to such other address as any party
may have furnished to the others in writing in accordance
herewith.
11. Governing Law and Venue. This Agreement
shall be governed by, and construed in accordance with,
the laws of the State of New York, without giving effect
to the principles of conflict of laws thereof. Any suit
brought hereon and any and all legal proceedings to
enforce this Agreement, whether in contract, tort, equity
or otherwise, shall be brought in the Court of Chancery
of the State of Delaware to the extent such court has
subject matter jurisdiction of such suit, and otherwise
in the Superior Court of the State of Delaware, the
parties hereto hereby waiving any claim or defense that
such forum is not convenient or proper. Each party
hereby agrees that such court shall have in personam
jurisdiction over it, consents to service of process in
any manner prescribed in Section 10 hereof or in any
other manner authorized by Delaware law, and agrees that
a final judgment in any such action or proceeding, no
longer subject to any appeal, shall be conclusive.
12. Counterparts. This Agreement may be
executed in several counterparts, each of which shall be
an original, but all of which together shall constitute
one and the same agreement.
13. Effect of Headings. The section headings
herein are for convenience only and shall not affect the
construction hereof.
14. Amendment; Waiver. No amendment or waiver
of any provision of this Agreement or consent to
departure therefrom shall be effective unless in writing
and signed by the parties hereto affected thereby, in the
case of an amendment, or by the party which is the
beneficiary of any such provision, in the case of a
waiver or a consent to departure therefrom.
IN WITNESS WHEREOF, this Agreement has been
duly executed by the parties hereto all as of the day and
year first above written.
FIRST BANK SYSTEM, INC. FIRST INTERSTATE BANCORP
By: /s/ Xxx X. Mitau By: /s/Xxxxxxxx X. Xxxxxx, Xx.
Name: Xxx X. Mitau Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Executive Vice Title: Executive Vice President
President, General & Treasurer
Counsel & Secretary
ELEVEN ACQUISITION CORP. XXXXX FARGO & COMPANY
By: /s/ Xxx X. Mitau By: /s/ Xxx Xxxxxxxxxxx, Xx.
Name: Xxx X. Mitau Name: Xxx Xxxxxxxxxxx, Xx.
Title: Executive Vice Pres- Title: General Counsel
ident & Secretary
Schedule 4
1. Xxxxx Fargo & Company v. First Interstate Bancorp,
First Bank System, Inc., Eleven Acquisition Corp.,
Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx Xxxxxxx
Xxxx, Xxxxx X. Xxxxxxx, Xxxxx Du Xxxx, Xxx X.
Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Sample,
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. X. Xxxxx, Xxxxxxx X.
Stegemier, and Xxxxxx X. Xxxxxx, C.A. No. 14696,
filed November 13, 1995, in the Court of Chancery of
the State of Delaware in and for New Castle County.
2. First Bank System, Inc. and Eleven Acquisition Corp.
x. Xxxxx Fargo & Company, C.A. No. 95-787, filed
December 14, 1995 in the United States District
Court for the District of Delaware, counterclaims
filed by Xxxxx Fargo & Company on December 22, 1995.
3. First Interstate Bancorp x. Xxxxx Fargo & Company,
Xxxx Xxxxx, H. Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Dezember, Xxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxx
X. Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxxx,
Xxxxx-Xxx Xxxx, Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxx,
C.A. No. 95-800, filed December 18, 1995 in the
United States District Court for the District of
Delaware, counterclaims filed by Xxxxx Fargo &
Company on December 22, 1995.
4. First Bank System, Inc. and Eleven Acquisition Corp.
x. Xxxxx Fargo & Company, Case No. BC 142972, filed
January 22, 1996 in the Superior Court for the State
of California for the County of Los Angeles.
EXHIBIT A
LIMITED RELEASE
First Bank System, Inc. and Eleven Acquisition
Corp. ("RELEASORS"), for valuable consideration,
including the release of even date executed by Xxxxx
Fargo & Company in favor of RELEASORS, the receipt of
which is hereby acknowledged, release and discharge Xxxxx
Fargo & Company, its subsidiaries and affiliates and
their present and former directors, officers,
stockholders, employees, agents, attorneys, successors
and assigns (collectively, with Xxxxx Fargo & Company,
"RELEASEES") from all actions, accounts, agreements,
bonds, bills, causes of action, claims, covenants,
contracts, controversies, damages, demands, debts, dues,
extents, expenses, executions, judgments, liabilities,
obligations, promises, predicate acts, reckonings,
specialties, suits, sums of money, trespasses and
variances whatsoever, in law, equity or otherwise, known
or unknown ("CLAIMS"), which against the RELEASEES or any
of them, the RELEASORS, their successors, affiliates and
assigns, or anyone claiming through or under any of them,
ever had or now have, or may hereafter have or acquire,
based upon, related to, arising from, or connected in any
way with any of the Agreement and Plan of Merger dated as
of November 5, 1995 among First Bank System, Inc., Eleven
Acquisition Corp., and First Interstate Bancorp, the
related Termination Fee Agreements, Stock Option
Agreements, Confidentiality Agreement (as that term is
defined in the Merger Agreement) and other related
agreements, the transactions contemplated thereby, the
Exchange Offer, Proxy Solicitation and Consent
Solicitation announced by Xxxxx Fargo & Company on
November 13, 1995, the transactions contemplated thereby,
and the acquisition of First Interstate Bancorp by Xxxxx
Fargo & Company, including without limitation all CLAIMS
that were or could have been asserted in the actions
captioned Xxxxx Fargo & Company v. First Interstate
Bancorp, et al., No. 14696 (Delaware Court of Chancery),
First Bank System, Inc. et ano. x. Xxxxx Fargo & Company,
No. 95-787 (United States District Court for the District
of Delaware), First Interstate Bancorp x. Xxxxx Fargo &
Company et al., No. 95-800 (United States District Court
for the District of Delaware), First Bank System, Inc.,
et ano. x. Xxxxx Fargo & Company (California Xxxxxxxx
Xxxxx, Xxxxxx xx Xxx Xxxxxxx), Xx. XX000000, Xxxxx X.
Xxxxxxxxxx, et al. v. First Interstate Bancorp, et al. ,
No. 95-810 (United States District Court for the District
of Delaware), In re First Interstate Bancorp Shareholder
Litigation, No. 14623 (Delaware Court of Chancery),
Xxxxxx Xxxxxx, derivatively on behalf of First Interstate
Bancorp, Inc. v. Xxxx X. Xxxxxx, et al., No. 95-7954
(United States District Court for the Central District of
California), Xxxxxxx X. Xxxxxxx, on behalf of himself and
others similarly situated v. Xxxxxxx X.X. Xxxxx, xx xx.,
Xx. 00-0000 (Xxxxxx Xxxxxx District Court for the Central
District of California), Xxxxxxx X. Xxxxxxx, on behalf of
himself and others similarly situated v. Xxxxxxx X.X.
Xxxxx, et al., No. BC139665, (California Superior Court,
County of Los Angeles), other than any CLAIMS arising
with respect to any breach that occurs on or after the
date hereof of the Confidentiality Agreement, the
Agreement of even date executed by First Bank System,
Inc., Eleven Acquisition Corp., First Interstate Bancorp,
and Xxxxx Fargo & Company, or Sections 6.2(b), 8.2 or 9.3
of the Merger Agreement.
To ensure that this RELEASE is enforced in
accordance with its terms, the RELEASORS and the
RELEASEES hereby acknowledge that each of them is
familiar with section 1542 of the Civil Code of
California and knowingly and voluntarily waives any
rights or protections afforded by that Section, which
provides as follows:
A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with the debtor.
The RELEASORS and the RELEASEES also knowingly
and voluntarily waive all rights and benefits they may
have under comparable or similar statutes and principles
of common law of any and all states of the United States
or of the United States.
This RELEASE is governed by and shall be
construed and interpreted in accordance with the laws of
the State of New York.
This RELEASE may not be modified or amended
except by an instrument in writing signed by the
RELEASORS and the RELEASEES.
IN WITNESS WHEREOF, the RELEASORS have executed
this RELEASE on the 23rd day of January, 1996.
FIRST BANK SYSTEM, INC. ELEVEN ACQUISITION CORP.
By: /s/ Xxx X. Mitau By: /s/ Xxx X. Mitau
Name: Xxx X. Mitau Name: Xxx X. Mitau
Title: Executive Vice Pres- Title: Executive Vice Pres-
ident, General Counsel ident & Secretary
& Secretary
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
On January 23, 1996 before me personally came
, to me known, who, being by me duly
sworn, did depose and state that he is the
of First Bank System, Inc. and the
of Eleven Acquisition Corp., the entities described
in and that executed the foregoing RELEASE and that he is
duly authorized by the Boards of Directors of First Bank
System, Inc. and Eleven Acquisition Corp. to execute said
RELEASE on behalf of First Bank System, Inc. and Eleven
Acquisition Corp.
Notary Public
EXHIBIT B
LIMITED RELEASE
First Bank System, Inc. and Eleven Acquisition
Corp. ("RELEASORS"), for valuable consideration,
including the release of even date executed by First
Interstate Bancorp in favor of RELEASORS, the receipt of
which is hereby acknowledged, release and discharge First
Interstate Bancorp, its subsidiaries and affiliates and
their present and former directors, officers,
stockholders, employees, agents, attorneys, successors
and assigns (collectively, with First Interstate Bancorp,
"RELEASEES") from all actions, accounts, agreements,
bonds, bills, causes of action, claims, covenants,
contracts, controversies, damages, demands, debts, dues,
extents, expenses, executions, judgments, liabilities,
obligations, promises, predicate acts, reckonings,
specialties, suits, sums of money, trespasses and
variances whatsoever, in law, equity or otherwise, known
or unknown ("CLAIMS"), which against the RELEASEES or any
of them, the RELEASORS, their successors, affiliates and
assigns, or anyone claiming through or under any of them,
ever had or now have, or may hereafter have or acquire,
based upon, related to, arising from, or connected in any
way with any of the Agreement and Plan of Merger dated as
of November 5, 1995 among First Bank System, Inc., Eleven
Acquisition Corp., and First Interstate Bancorp, the
related Termination Fee Agreements, Stock Option
Agreements, Confidentiality Agreement (as that term is
defined in the Merger Agreement) and other related
agreements, the transactions contemplated thereby, the
Exchange Offer, Proxy Solicitation and Consent
Solicitation announced by Xxxxx Fargo & Company on
November 13, 1995, the transactions contemplated thereby,
and the acquisition of First Interstate Bancorp by Xxxxx
Fargo & Company, including without limitation all CLAIMS
that were or could have been asserted in the actions
captioned Xxxxx Fargo & Company v. First Interstate
Bancorp, et al., No. 14696 (Delaware Court of Chancery),
First Bank System, Inc. et ano. x. Xxxxx Fargo & Company,
No. 95-787 (United States District Court for the District
of Delaware), First Interstate Bancorp x. Xxxxx Fargo &
Company et al., No. 95-800 (United States District Court
for the District of Delaware), First Bank System, Inc.,
et ano. x. Xxxxx Fargo & Company (California Xxxxxxxx
Xxxxx, Xxxxxx xx Xxx Xxxxxxx) Xx. XX000000, Xxxxx X.
Xxxxxxxxxx, et al. v. First Interstate Bancorp, et al.,
Xx. 00-000 (Xxxxxx Xxxxxx Xxxxxxxx Xxxxx for the District
of Delaware), In re First Interstate Bancorp Shareholder
Litigation, No. 14623 (Delaware Court of Chancery),
Xxxxxx Xxxxxx, derivatively on behalf of First Interstate
Bancorp, Inc. v. Xxxx X. Xxxxxx, et al., No. 95-7954
(United States District Court for the Central District of
California), Xxxxxxx X. Xxxxxxx, on behalf of himself and
others similarly situated v. Xxxxxxx X.X. Xxxxx, xx xx.,
Xx. 00-0000 (Xxxxxx Xxxxxx District Court for the Central
District of California), Xxxxxxx X. Xxxxxxx, on behalf of
himself and others similarly situated v. Xxxxxxx X.X.
Xxxxx, et al., No. BC139665, (California Superior Court,
County of Los Angeles), other than any CLAIMS arising
with respect to any breach that occurs on or after the
date hereof of the Confidentiality Agreement, the
Agreement of even date executed by First Bank System,
Inc., Eleven Acquisition Corp., First Interstate Bancorp,
and Xxxxx Fargo & Company, or Sections 6.2(b), 8.2 or 9.3
of the Merger Agreement.
To ensure that this RELEASE is enforced in
accordance with its terms, the RELEASORS and the
RELEASEES hereby acknowledge that each of them is
familiar with section 1542 of the Civil Code of
California and knowingly and voluntarily waives any
rights or protections afforded by that Section, which
provides as follows:
A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor.
The RELEASORS and the RELEASEES also knowingly
and voluntarily waive all rights and benefits they may
have under comparable or similar statutes and principles
of common law of any and all states of the United States
or of the United States.
This RELEASE is governed by and shall be
construed and interpreted in accordance with the laws of
the State of New York.
This RELEASE may not be modified or amended
except by an instrument in writing signed by the
RELEASORS and the RELEASEES.
IN WITNESS WHEREOF, the RELEASORS have executed
this RELEASE on the 23rd day of January, 1996.
FIRST BANK SYSTEM, INC. ELEVEN ACQUISITION CORP.
By: /s/ Xxx X. Mitau By: /s/ Xxx X. Mitau
Name: Xxx X. Mitau Name: Xxx X. Mitau
Title: Executive Vice Pres- Title: Executive Vice Pres-
ident, General Counsel ident & Secretary
& Secretary
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
On January 23, 1996 before me personally came
, to me known, who, being by me duly
sworn, did depose and state that he is the
of First Bank System, Inc. and the
of Eleven Acquisition Corp., the entities described
in and that executed the foregoing RELEASE and that he is
duly authorized by the Boards of Directors of First Bank
System, Inc. and Eleven Acquisition Corp. to execute said
RELEASE on behalf of First Bank System, Inc. and Eleven
Acquisition Corp.
Notary Public
EXHIBIT C
LIMITED RELEASE
Xxxxx Fargo & Company ("RELEASOR"), for
valuable consideration, including the release of even
date executed by First Bank System, Inc. and Eleven
Acquisition Corp. in favor of RELEASOR, the receipt of
which is hereby acknowledged, releases and discharges
First Bank System, Inc., its subsidiaries and affiliates
(including without limitation Eleven Acquisition Corp.)
and their present and former directors, officers,
stockholders, employees, agents, attorneys, successors
and assigns (collectively, with First Bank System, Inc.,
"RELEASEES") from all actions, accounts, agreements,
bonds, bills, causes of action, claims, covenants,
contracts, controversies, damages, demands, debts, dues,
extents, expenses, executions, judgments, liabilities,
obligations, promises, predicate acts, reckonings,
specialties, suits, sums of money, trespasses and
variances whatsoever, in law, equity or otherwise, known
or unknown ("CLAIMS"), which against the RELEASEES or any
of them, the RELEASOR, its successors, affiliates and
assigns, or anyone claiming through or under any of them,
ever had or now has, or may hereafter have or acquire,
based upon, related to, arising from, or connected in any
way with any of the Agreement and Plan of Merger dated as
of November 5, 1995 among First Bank System, Inc., Eleven
Acquisition Corp., and First Interstate Bancorp, ("Merger
Agreement"), the related Termination Fee Agreements,
Stock Option Agreements, Confidentiality Agreement (as
that term is defined in the Merger Agreement) and other
related agreements, the transactions contemplated
thereby, the Exchange Offer, Proxy Solicitation and
Consent Solicitation announced by Xxxxx Fargo & Company
on November 13, 1995, the transactions contemplated
thereby, and the acquisition of First Interstate Bancorp
by Xxxxx Fargo & Company, including without limitation
all CLAIMS that were or could have been asserted in the
actions captioned Xxxxx Fargo & Company v. First
Interstate Bancorp, et al., No. 14696 (Delaware Court of
Chancery), First Bank System, Inc. et ano. x. Xxxxx Fargo
& Company, No. 95-787 (United States District Court for
the District of Delaware), First Interstate Bancorp x.
Xxxxx Fargo & Company et al., No. 95-800 (United States
District Court for the District of Delaware), First Bank
System, Inc., et ano. x. Xxxxx Fargo & Company
(California Xxxxxxxx Xxxxx, Xxxxxx xx Xxx Xxxxxxx) Xx.
XX000000, Xxxxx X. Xxxxxxxxxx, et al. v. First Interstate
Bancorp, et al., Xx. 00-000 (Xxxxxx Xxxxxx Xxxxxxxx Xxxxx
for the District of Delaware), In re First Interstate
Bancorp Shareholder Litigation, No. 14623 (Delaware Court
of Chancery), Xxxxxx Xxxxxx, derivatively on behalf of
First Interstate Bancorp, Inc. v. Xxxx X. Xxxxxx, et al.,
No. 95-7954 (United States District Court for the Central
District of California), Xxxxxxx X. Xxxxxxx, on behalf of
himself and others similarly situated v. Xxxxxxx X.X.
Xxxxx, xx xx., Xx. 00-0000 (Xxxxxx Xxxxxx District Court
for the Central District of California), Xxxxxxx X.
Xxxxxxx, on behalf of himself and others similarly
situated v. Xxxxxxx X.X. Xxxxx, et al., No. BC139665,
(California Superior Court, County of Los Angeles), other
than any CLAIMS arising with respect to any breach that
occurs on or after the date hereof of the Confidentiality
Agreement, the Agreement of even date executed by First
Bank System, Inc., Eleven Acquisition Corp., First
Interstate Bancorp, and Xxxxx Fargo & Company, or of
Sections 6.2(b), 8.2 or 9.3 of the Merger Agreement.
To ensure that this RELEASE is enforced in
accordance with its terms, the RELEASOR and the RELEASEES
hereby acknowledge that each of them is familiar with
section 1542 of the Civil Code of California and
knowingly and voluntarily waives any rights or
protections afforded by that Section, which provides as
follows:
A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor.
The RELEASOR and the RELEASEES also knowingly
and voluntarily waive all rights and benefits they may
have under comparable or similar statutes and principles
of common law of any and all states of the United States
or of the United States.
This RELEASE is governed by and shall be
construed and interpreted in accordance with the laws of
the State of New York.
This RELEASE may not be modified or amended
except by an instrument in writing signed by the RELEASOR
and the RELEASEES.
IN WITNESS WHEREOF, the RELEASOR has executed
this RELEASE on the 23rd day of January, 1996.
XXXXX FARGO & COMPANY
By: /s/ Xxx Xxxxxxxxxxx, Xx.
Name: Xxx Xxxxxxxxxxx, Xx.
Title: General Counsel
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On January 23, 1996 before me personally came
Xxx Xxxxxxxxxxx, to me known, who, being by me duly
sworn, did depose and state that he is the General
Counsel of Xxxxx Fargo & Company, the entity described in
and that executed the foregoing RELEASE and that he is
duly authorized by the Board of Directors of Xxxxx Fargo
& Company to execute said RELEASE on behalf of Xxxxx
Fargo & Company.
/s/ X. Xxxxxxx
Notary Public
EXHIBIT D
LIMITED RELEASE
First Interstate Bancorp ("RELEASOR"), for
valuable consideration, including the release of even
date executed by First Bank System, Inc. and Eleven
Acquisition Corp. in favor of RELEASOR, the receipt of
which is hereby acknowledged, releases and discharges
First Bank System, Inc., its subsidiaries and affiliates
(including without limitation Eleven Acquisition Corp.)
and their present and former directors, officers,
stockholders, employees, agents, attorneys, successors
and assigns (collectively, with First Bank System, Inc.,
"RELEASEES") from all actions, accounts, agreements,
bonds, bills, causes of action, claims, covenants,
contracts, controversies, damages, demands, debts, dues,
extents, expenses, executions, judgments, liabilities,
obligations, promises, predicate acts, reckonings,
specialties, suits, sums of money, trespasses and
variances whatsoever, in law, equity or otherwise, known
or unknown ("CLAIMS"), which against the RELEASEES or any
of them, the RELEASOR, its successors, affiliates and
assigns, or anyone claiming through or under any of them,
ever had or now has, or may hereafter have or acquire,
based upon, related to, arising from, or connected in any
way with any of the Agreement and Plan of Merger dated as
of November 5, 1995 among First Bank System, Inc., Eleven
Acquisition Corp., and First Interstate Bancorp, the
related Termination Fee Agreements, Stock Option
Agreements, Confidentiality Agreement (as that term is
defined in the Merger Agreement) and other related
agreements, the transactions contemplated thereby, the
Exchange Offer, Proxy Solicitation and Consent
Solicitation announced by Xxxxx Fargo & Company on
November 13, 1995, the transactions contemplated thereby,
and the acquisition of First Interstate Bancorp by Xxxxx
Fargo & Company, including without limitation all CLAIMS
that were or could have been asserted in the actions
captioned Xxxxx Fargo & Company v. First Interstate
Bancorp, et al., No. 14696 (Delaware Court of Chancery),
First Bank System, Inc. et ano. x. Xxxxx Fargo & Company,
No. 95-787 (United States District Court for the District
of Delaware), First Interstate Bancorp x. Xxxxx Fargo &
Company et al., No. 95-800 (United States District Court
for the District of Delaware), First Bank System, Inc.,
et ano. x. Xxxxx Fargo & Company (California Xxxxxxxx
Xxxxx, Xxxxxx xx Xxx Xxxxxxx) Xx. XX000000, Xxxxx X.
Xxxxxxxxxx, et al. v. First Interstate Bancorp, et al.,
Xx. 00-000 (Xxxxxx Xxxxxx Xxxxxxxx Xxxxx for the District
of Delaware), In re First Interstate Bancorp Shareholder
Litigation, No. 14623 (Delaware Court of Chancery),
Xxxxxx Xxxxxx, derivatively on behalf of First Interstate
Bancorp, Inc. v. Xxxx X. Xxxxxx, et al., No. 95-7954
(United States District Court for the Central District of
California), Xxxxxxx X. Xxxxxxx, on behalf of himself and
others similarly situated v. Xxxxxxx X.X. Xxxxx, xx xx.,
Xx. 00-0000 (Xxxxxx Xxxxxx District Court for the Central
District of California), Xxxxxxx X. Xxxxxxx, on behalf of
himself and others similarly situated v. Xxxxxxx X.X.
Xxxxx, et al., No. BC139665, (California Superior Court,
County of Los Angeles), other than any CLAIMS arising
with respect to any breach that occurs on or after the
date hereof of the Confidentiality Agreement, the
Agreement of even date executed by First Bank System,
Inc., Eleven Acquisition Corp., First Interstate Bancorp,
and Xxxxx Fargo & Company, or of Sections 6.2(b), 8.2 or
9.3 of the Merger Agreement.
To ensure that this RELEASE is enforced in
accordance with its terms, the RELEASOR and the RELEASEES
hereby acknowledge that each of them is familiar with
section 1542 of the Civil Code of California and
knowingly and voluntarily waives any rights or
protections afforded by that Section, which provides as
follows:
A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor.
The RELEASOR and the RELEASEES also knowingly
and voluntarily waive all rights and benefits they may
have under comparable or similar statutes and principles
of common law of any and all states of the United States
or of the United States.
This RELEASE is governed by and shall be
construed and interpreted in accordance with the laws of
the State of New York.
This RELEASE may not be modified or amended
except by an instrument in writing signed by the RELEASOR
and the RELEASEES.
IN WITNESS WHEREOF, the RELEASOR has executed
this RELEASE on the 23rd day of January, 1996.
XXXXX FARGO & COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Executive V.P. & Treasurer
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On January 23, 1996 before me personally came
Xxxxxxxx X. Xxxxxx, Xx., to me known, who, being by me
duly sworn, did depose and state that he is the Executive
Vice-President and Treasurer of First Interstate Bancorp,
the entity described in and that executed the foregoing
RELEASE and that he is duly authorized by the Board of
Directors of First Interstate Bancorp to execute said
RELEASE on behalf of First Interstate Bancorp.
/s/ Xxxxxxx Xxxxxxx
Notary Public