EXHIBIT 4.27
SHAREHOLDER'S AGREEMENT
THIS AGREEMENT is made this _____ day of __________, 2002, by and
between __________________, herein referred to as "Shareholder", and FIRST
INTERSTATE BANCSYSTEM, INC., a Montana corporation, 000 Xxxxx 00xx Xxxxxx,
Xxxxxxxx, Xxxxxxx 00000, herein referred to as the "Corporation".
RECITALS:
A. Shareholder owns capital stock of the Corporation, which together
with any additional stock hereafter acquired by Shareholder, except for stock
acquired from the Savings Plan (as defined herein) is referred to herein as the
"Stock".
B. The Corporation desires to restrict the issuance and holding of its
corporate stock to officers, directors, including advisory directors and any
other classification or designation of directors hereafter made by the
Corporation, and employees of the Corporation or any of its subsidiaries, and to
fiduciaries for the benefit of any such persons, to charities, and to such other
persons as the Corporation may permit.
C. The Corporation and Shareholder make this Agreement to set forth the
restrictions on the Stock.
NOW, THEREFORE, in consideration of the above facts and the
Shareholder's and the Corporation's mutual promises herein, the Shareholder and
the Corporation agree as follows:
1. DEFINITIONS. The following definitions shall apply to this
Agreement:
(a) "Call Right" means the call right of the Corporation
described in paragraph 4.2.
(b) "Charity" is defined in paragraph 3.
(c) "Code" is defined in paragraph 3.
(d) "Competitor" means a bank, credit union, savings
bank, stock brokerage firm, insurance company or
producer, trust services provider, mortgage lender or
broker, credit provider, escrow services provider,
data technology services provider, banking item
processing service provider, or any other business
providing goods or services provided by the
Corporation or any of its subsidiaries or affiliates
now or at any time in the future relevant to any
provisions of this Agreement in any market area
served by the Corporation or any of its subsidiaries
or affiliates or in which the Corporation or any of
its subsidiaries or affiliates is soliciting
business.
(e) "Corporation" is defined in the opening paragraph of
this Agreement.
(f) "Fair Market Value" is defined in paragraph 9.1.
(g) "Purchase Right" means the Right of First Refusal or
the Call Right.
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August 19, 2002
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(h) "Right of First Refusal" is defined in paragraph 4.1.
(i) "Savings Plan" means the Savings and Profit Sharing
Plan For Employees of First Interstate BancSystem,
Inc., as amended from time to time.
(j) "Shareholder's Relationship with the Corporation"
means any employment or other service relationship of
the Shareholder with the Corporation or any of its
subsidiaries or affiliates including but not limited
to being an employee, member, partner, officer,
director, advisory director, and any other
classification or designation of officers or
directors hereafter made by the Corporation or any of
its subsidiaries or affiliates.
(k) "Stock" is defined in Recital paragraph A.
(l) "Termination" means the end of a Shareholder's
Relationship with the Corporation or any of its
subsidiaries or affiliates whether by resignation,
death, termination, or otherwise.
2. RESTRICTION ON TRANSFER OR PLEDGE OF STOCK. Except as otherwise
provided in this Agreement or as agreed upon in writing by the Shareholder and
the Corporation, Shareholder shall not transfer or permit to be transferred,
whether voluntarily, involuntarily or by operation of law, resulting from death
or otherwise, any or all of the Stock, and any attempted transfer in violation
of this Agreement shall be void. Shareholder shall not encumber or use any Stock
as security for a loan, except upon the written consent of the Corporation and
subject to the Corporation's rights herein. Under no circumstances, including
but not limited to the provisions of paragraphs 3 and 4.1 below, may a
Shareholder who has acquired Stock under any stock option plan now existing or
hereafter adopted by the Corporation transfer, attempt to transfer, or permit
the transfer of any of the Stock so acquired for a period of six (6) months
following the date of acquisition of such Stock. The certificate for the Stock
shall contain the restrictive legends provided in this Agreement, unless
otherwise agreed in writing by the Corporation.
3. TRANSFER OF STOCK TO CHARITY. A Shareholder may transfer Stock to
any organization described in Section 170(b)(1)(A) of the Internal Revenue Code
of 1986, as now or hereafter amended (the "Code"), a gift to which qualifies as
a charitable deduction under Sections 170(c), 2055(a), or 2522(a) of the Code (a
"Charity"). Stock transferred to a Charity shall be subject to the terms of this
Agreement, except for the provisions of paragraph 4.2.1, and the Charity shall
be included in the definition of "Shareholder" herein. The certificate issued to
the Charity for the Stock shall contain the restrictive legends required by this
Agreement.
4. CORPORATION STOCK PURCHASE RIGHTS.
4.1 RIGHT OF FIRST REFUSAL. If Shareholder desires to sell or transfer
any Stock, Shareholder shall give written notice of such desire to the
Corporation in the form of Exhibit A attached hereto. If other than by reason of
Shareholder's death, any of Shareholder's Stock is transferred by operation of
law to any person other than the Corporation (such as, but not limited to,
Shareholder's trustee in bankruptcy, a purchaser at any execution sale, or the
guardian or conservator of Shareholder), Shareholder or Shareholder's guardian
or conservator, as the case may be, shall immediately give written notice to the
Corporation of the transfer. Unless the proposed sale or transfer of stock is
agreed upon in writing between the Corporation and Shareholder pursuant to
paragraph 2, then within one hundred ninety (190) days after the Corporation's
receipt of any notice referred to in this paragraph, the Corporation may
exercise its
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August 19, 2002
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right to purchase all but not less than all of the Stock desired to be sold or
transferred by Shareholder or involuntarily transferred (the "Right of First
Refusal"), upon the terms set forth in this Agreement.
4.2 CALL RIGHT.
4.2.1 CALL RIGHT ON TERMINATION OF RELATIONSHIP. Upon Termination of
Shareholder's Relationship with the Corporation, the Corporation shall have the
right, but not the obligation, to purchase all or any portion of Shareholder's
Stock (the "Call Right") on or after that date which is four (4) years after the
date of Termination, on the terms set forth in this Agreement, subject to the
following qualifications:
(i) If Shareholder becomes an officer, director,
shareholder, member, partner, employee, or
independent contractor of, or establishes any other
relationship with, a Competitor of the Corporation,
as determined by the Corporation, which determination
shall be conclusive and irrefutable, then the Call
Right shall be accelerated and the Corporation may
exercise its Call Right at any time thereafter;
(ii) If Shareholder owns less than 1,000 shares of stock,
then the Corporation may exercise its Call Right at
any time after one year following Termination of
Shareholder's Relationship with the Corporation;
(iii) If Shareholder's service as an employee, officer, or
director of the Corporation or any of its
subsidiaries or affiliates ends and Shareholder at
any time thereafter becomes an advisory director of
the Corporation or any of its subsidiaries or
affiliates, the Corporation may, at its option,
exercise its Call Right as to any or all of
Shareholder's Stock over and above 5,000 shares at
any time after four years following the date on which
Shareholder becomes an advisory director. When
Shareholder's service as an advisory director ends,
the Corporation may exercise its Call Right as to any
or all of Shareholder's Stock at any time after four
years following termination.
4.2.2 CALL RIGHT ON PERMITTED STOCK TRANSFERS. If any Stock is
transferred by the Shareholder to a Charity or any other person or party with
the written consent of the Corporation, the Corporation shall have the right to
exercise its Call Right for such Stock at any time after such transfer.
4.2.3 GENERAL CALL RIGHT. In all circumstances other than those
addressed in paragraphs 4.2.1 and 4.2.2 above, the Corporation shall have the
right to exercise its Call Right for the Stock at any time.
4.2.4 CALL RIGHT FOLLOWING DEATH OF SHAREHOLDER. Upon Shareholder's
death, the personal representative of the Shareholder's estate may distribute
the Stock to the Shareholder's beneficiaries subject to all terms and provisions
of this Agreement, including but not limited to the Right of First Refusal and
the Call Right. Each beneficiary of the deceased Shareholder who receives Stock
shall be included in the definition of "Shareholder" herein. If a Termination of
the Shareholder's Relationship with the Corporation has occurred prior to the
Shareholder's death so that the Call Right time period has begun to run under
paragraph 4.2.1., the time period shall continue to run and shall not start anew
because of the Shareholder's death, provided
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August 19, 2002
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however, that the Call Right may not be exercised by the Corporation prior to
one year after the date of Shareholder's death. Shareholder, by signing this
Agreement, directs Shareholder's personal representative to open Shareholder's
estate promptly in the court of proper jurisdiction, to notify the Corporation
in writing of the opening of the estate, to provide the Corporation information
concerning the proposed distribution of Stock through the estate, and to
cooperate with the Corporation to effectuate the terms and provisions of this
Agreement.
5. ACQUISITION OF ADDITIONAL STOCK. If Shareholder acquires additional
Stock, whether through the exercise of stock options or otherwise during the
term of this Agreement, the Corporation shall have all rights set forth in this
Agreement with regard to such additional Stock, including but not limited to the
Call Right and Right of First Refusal set forth in paragraph 4. If a Termination
of the Shareholder's Relationship with the Corporation has occurred prior to the
Shareholder's acquisition of additional Stock so that the Call Right period has
begun to run under paragraph 4.2.1, the Call Right time period shall continue to
run and shall include the additional Stock, and shall not start anew with
respect to the additional Stock.
6. CAPITAL ADJUSTMENTS TO STOCK. If there is any change in the Stock by
reason of a stock dividend or split, reorganization, recapitalization,
reclassification, merger, consolidation, combination, or exchange of shares or
other similar corporate change, the aggregate number of shares of Stock referred
to in any provision of this Agreement shall be appropriately adjusted by the
Corporation, whose determination shall be conclusive, provided, however, that
fractional shares shall be rounded up to the nearest whole share. No adjustment
shall be made in connection with the issuance by the Corporation of any
warrants, rights, or options to acquire additional shares of corporate stock or
of securities convertible into corporate stock.
7. EXERCISE OF PURCHASE RIGHT. The Corporation shall exercise any
Purchase Right granted in this Agreement by delivering written notice of its
exercise of the Purchase Right, within any time period required hereunder, to
the Shareholder, or to the personal representative of Shareholder's estate if
the Shareholder is deceased.
8. EFFECT OF CONSENT TO TRANSFER STOCK OR NON-EXERCISE OF RIGHT OF
FIRST REFUSAL. If the Corporation consents in writing to Shareholder's transfer
of any or all of the Stock and/or if the Corporation waives or fails to exercise
its Right of First Refusal on any or all of the Stock, then the Stock may be
transferred subject to the terms, conditions, and limitations of this Agreement
(except for the provisions of paragraph 4.2.1, which shall be inapplicable), and
the transferee shall be included in the definition of "Shareholder" herein.
9. PURCHASE PRICE FOR SHARES.
9.1 DETERMINATION OF PURCHASE PRICE. The purchase price for each share
of Stock purchased pursuant to any Purchase Right granted in this Agreement
shall be the Fair Market Value of the Stock . "Fair Market Value" means, as of
any date, the value of a share of Stock determined as follows:
(i) If the Stock is regularly quoted by a recognized
securities dealer but selling prices are not
reported, its Fair Market Value shall be the mean
between the high bid and the low asked prices for the
Stock on the last market trading day prior to the
date of determination; or
(ii) In the absence of an established market for the
Stock, its Fair Market Value shall be determined in
good faith by the Corporation's board of
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August 19, 2002
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directors which may, in its sole discretion, utilize
an independent third party to assist with the
determination of the Fair Market Value of the Stock,
which may take the form of a periodic appraisal of
the Fair Market Value of a share of Stock valued as a
minority interest.
9.2 PAYMENT OF THE PURCHASE PRICE. The purchase price for Stock to be
purchased by the Corporation pursuant to this Agreement shall be paid in cash at
the closing of the purchase of the Stock. The Corporation may, at its option,
withhold any amount for which the Shareholder is obligated to the Corporation or
its subsidiaries from the amount of the purchase price payable to Shareholder
and apply said amount to such obligation.
10. THE CLOSING.
10.1 TIME AND PLACE. Unless otherwise agreed by the parties, the
closing of the sale and purchase of Stock, as provided in this Agreement, shall
take place at the general offices of the Corporation within thirty (30) days
after the Corporation's exercise of any Purchase Right.
10.2 DOCUMENTS. At the closing of the sale and purchase of the Stock,
the Corporation and the Shareholder or other party having an interest in the
Stock being purchased hereunder shall execute and immediately deliver to each
other the various documents which shall be required to carry out their
undertakings hereunder, including but not limited to the payment of cash and the
assignment and delivery of stock certificates free and clear of all taxes,
debts, claims, judgments, liens or encumbrances whatsoever.
11. LEGENDS ON CERTIFICATES. Certificates representing the Stock shall
bear such legends as may be required by the securities laws of the United States
and any applicable state, and the following legend reciting the existence of
this Agreement and restrictions on transfer of the Stock:
The sale, transfer or encumbrance of the shares of stock
represented by this certificate is subject to an agreement to
restrict transfer or acquisition of the shares. A copy of the
agreement is on file in the office of the secretary of the
Corporation. Any transfer or acquisition in violation of the
agreement is null and void.
12. REISSUED STOCK. The Corporation shall have the right to substitute
or reissue stock in exchange for the Stock in the event of a stock split,
merger, consolidation, name change, sale, spin off, share exchange, or other
corporate reorganization. Substituted or reissued stock shall be subject to the
terms of this Agreement.
13. TERM OF AGREEMENT. This Agreement shall be effective so long as
Shareholder owns any Stock or holds any option or other right to acquire any
Stock of the Corporation, and this Agreement shall bind all Stock now owned or
hereafter acquired by Shareholder.
14. TERMINATION.
14.1 EVENTS CAUSING TERMINATION. This Agreement and all restrictions on
Stock created hereby shall be effective as of the date hereof and shall
terminate on: (a) expiration of the term of this Agreement, (b) the occurrence
of the bankruptcy, receivership or dissolution of the Corporation, (c) the
public trading of the Stock, or (d) the execution of a written instrument
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August 19, 2002
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by the Corporation and the party or parties who then own Stock subject to this
Agreement which terminates the same.
14.2 SURVIVAL OF RIGHTS AND REMEDIES. The termination of this Agreement
for any reason shall not affect any right or remedy existing hereunder prior to
the effective date of termination hereof.
15. REMEDIES. The parties agree that they will not have an adequate
remedy at law for the breach of this Agreement because, among other reasons, the
Stock cannot readily be purchased or sold on the open market. The parties shall
have available for any breach of this Agreement the remedies of specific
performance and injunctive relief, together with all other remedies at law or in
equity. No waiver of or forbearance to enforce any right or provision hereof
shall be binding unless in writing and signed by the party to be bound, and no
such waiver or forbearance in any instance shall apply to any other instance or
any other right or provision.
16. MODIFICATION OR TERMINATION. This Agreement may not be modified or
terminated orally, and no modification, termination, or amendment shall be valid
unless in writing signed by all parties hereto.
17. GOVERNING LAW. This Agreement shall be governed for all purposes by
the laws of the State of Montana.
18. SEVERABILITY. Each term and provision of this Agreement is intended
to be enforced to the maximum extent permitted by applicable law. If any term or
provision of this Agreement or the applicability thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and shall continue in full force and effect.
19. STOCK HELD IN SAVINGS PLAN. This Agreement does not apply to or
restrict stock of the Corporation held in the Savings Plan of the Corporation.
20. NOTICES. All notices provided for by this Agreement shall be made
in writing and shall be given either: (1) by actual delivery of the notice to
the party entitled thereto; or (2) by mailing the notice in the U.S. mails,
certified mail, return receipt requested to the last known address of the party
entitled thereto. The notice shall be deemed to be received in case (1) on the
date of its actual receipt by a party and in case (2) on the date of its
mailing.
21. BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the Corporation and the Shareholder and their respective heirs, legal
representatives, successors and assigns.
22. TIME. Time shall be of the essence of this Agreement.
23. HEADINGS. The headings used herein are for convenience only, and
shall not be construed as a part of this Agreement or as a limitation on the
scope of the particular paragraphs to which they refer.
24. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties, and supersedes any and all prior negotiations,
understandings, and agreements.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth on page 1.
FIRST INTERSTATE BANCSYSTEM, INC.
By
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Its:
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"Corporation"
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"Shareholder"
Shareholder's Agreement
August 19, 2002
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EXHIBIT A
NOTICE
To: First Interstate BancSystem, Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
Pursuant to the Shareholder's Agreement between the undersigned
Shareholder and First Interstate BancSystem, Inc. ("Corporation"), the
undersigned hereby gives notice of Shareholder's desire to sell or
transfer _____ shares of Corporation common stock to __________________.
Dated: , 20 .
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Shareholder
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