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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into
this 20th day of September, 1993, by and among XXXX X. XXXX ("Xxxx"), ZIONS
BANCORPORATION, a Utah corporation, having its principal office in Salt Lake
City, Utah ("Zions Bancorp"), and ZIONS FIRST NATIONAL BANK OF ARIZONA, a
national banking association organized under the laws of the United States,
having its principal office in Mesa, Arizona ("Zions Arizona").
WITNESSETH THAT:
WHEREAS, the Agreement and Plan of Reorganization (the
"Agreement and Plan of Reorganization") dated as of September 20, 1993, by and
among Zions Bancorp, Zions Arizona, National Bancorp of Arizona Inc. (the
"Company") and National Bank of Arizona (the "Bank") provides that the Company
will be merged with and into ZMAZ, Inc. ("ZMAZ"), a wholly-owned subsidiary of
Zions Bancorp, with ZMAZ to be the entity resulting therefrom, and that the Bank
will be merged with and into Zions Arizona, with Zions Arizona to be the entity
resulting therefrom;
WHEREAS, Xxxx is the Chairman of the Board of Directors and
Chief Executive Officer of each of the Company and the Bank;
WHEREAS, Zions Bancorp and Zions Arizona desire to secure the
employment of Xxxx upon consummation of the transactions contemplated in the
Agreement and Plan of Reorganization;
WHEREAS, Xxxx is desirous of entering into the Agreement for
such periods and upon the terms and conditions set forth herein; and
WHEREAS, Section 4.10 of the Agreement and Plan of
Reorganization contemplates that Xxxx will enter into an employment and
non-competition 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. Employment; Responsibilities and Duties.
(a) The Company hereby agrees to employ Xxxx, and Xxxx hereby
agrees to serve, as a Senior Vice President of Zions Bancorp during the Term of
Employment as defined in Section 2 hereof, with such duties, responsibilities
and authority as shall be set forth in the Bylaws of Zions Bancorp or as may
otherwise be determined by Zions Bancorp;
(b) Zions Bancorp hereby agrees to cause the election of Xxxx
to each of the Board of Directors of Zions Arizona, the Board of Directors of
Zions Mortgage Company and the Board of Directors of Zions Investment
Securities, Inc. (each, a "Board" and collectively, the "Boards") at the first
regular meeting of each Board during the Term of Employment and thereafter to
cause his re-election to each Board throughout the Term of Employment, and Xxxx
hereby agrees to serve as a member of each Board upon his election and
re-election thereto during the Term of Employment.
(c) Zions Bancorp hereby agrees to appoint Xxxx, and Xxxx
hereby agrees to serve, upon the Executive Management Committee of Zions Bancorp
during the Term of Employment.
(d) Zions Arizona hereby agrees to employ Xxxx, and Xxxx
hereby agrees to serve, as Chairman of the Board of Directors and Chief
Executive Officer of Zions Arizona during the Term of Employment, with such
duties, responsibilities and authority as shall be set forth in the Bylaws of
Zions Arizona or as may otherwise be determined by Zions Arizona.
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(e) Xxxx shall devote his full working time and best efforts
to the performance of his responsibilities and duties hereunder. During the Term
of Employment, Xxxx shall not without the prior written consent of the
respective Boards of Directors of Zions Bancorp and Zions Arizona, render
services as an employee, independent contractor or otherwise, whether or not
compensated, to any person or entity other than Zions Bancorp and Zions Arizona
to which Xxxx is not rendering such services as of the date hereof and which
person or entity is not set forth in Schedule A hereof; provided, however, that
Xxxx may, where involvement in such activities do not individually or in the
aggregate significantly interfere with the performance by Xxxx of his duties or
violate the provisions of Section 5 hereof, (i) render services to charitable
organizations or manage his personal investments or, (ii) with the prior
permission of the respective Boards of Directors of Zions Bancorp and Zions
Arizona, hold other directorships or part-time academic appointments or have
other business affiliations which 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 commencing on and as of the date hereof (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
Xxxx, Zions Bancorp and Zions Arizona in accordance with paragraph (b) below;
(ii) the death of Xxxx;
(iii) Xxxx'x inability to perform his duties
hereunder, as a result of physical or mental disability, for a period of at
least 180 consecutive days or for at least 180 days during any period of 12
consecutive months during the Term of Employment; or
(iv) the discharge of Xxxx by either Zions Bancorp
or Zions Arizona "for cause," which shall mean one or more of the following (it
being understood that Xxxx'x employment with Zions Bancorp shall terminate
immediately if his employment with Zions Arizona is terminated for cause and his
employment with Zions Arizona shall terminate immediately if his employment with
Zions Bancorp is terminated for cause):
(A) any willful or gross misconduct by Xxxx
with respect to the business and affairs of Zions Bancorp or
Zions Arizona;
(B) the conviction of Xxxx of a felony
(after the earlier of the expiration of any applicable appeal
period without perfection of an appeal by Xxxx or the denial
of any appeal as to which no further appeal or review is
available to Xxxx) whether or not committed in the course of
his employment by Zions Bancorp or Zions Arizona;
(C) Xxxx'x willful neglect, failure or
refusal to carry out his duties hereunder; or
(D) the breach by Xxxx of any
representation, warranty or agreement contained herein, which
breach is material and adverse to Zions Bancorp or Zions
Arizona; or
(v) Xxxx'x resignation from his position as
Chairman of the Board of Directors and Chief Executive Officer of Zions Arizona
or as a member of the Board of Directors of Zions Arizona for any reason not set
forth in Section 2(a)(vii) hereof;
(vi) the termination of Xxxx'x employment by
Zions Bancorp and Zions Arizona, acting jointly, for any reason other than those
set forth in Subsections (i), (ii), (iii) or (iv) of this Section 2(a), at any
time, upon the 30th day following notice to Xxxx;
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(vii) Xxxx'x resignation from his position as
Chairman of the Board of Directors and Chief Executive Officer of Zions Arizona
or as a member of the Board of Directors of Zions Arizona upon the occurrence of
any of the following events:
(A) any reduction in the salary payable to
Xxxx pursuant to Section 3(a)(i) hereof, or in any bonus to
which Xxxx is entitled pursuant to Section 3(a)(ii) hereof, to
which Xxxx has not agreed and which has not resulted from a
termination pursuant to Section 2(a)(iv) hereof;
(B) any material reduction in the level of
responsibility, position (including status or title),
authority or duties of Xxxx as set forth in Section 2 hereof
to which Xxxx has not agreed and which has not resulted from a
termination of employment pursuant to Section 2(a)(iv) hereof;
(C) any relocation of Xxxx'x personal
residence to a place more than 50 miles from his personal
residence as of June 30, 1993 which is required by Zions
Bancorp or Zions Arizona, to which Xxxx has not agreed and
which has not resulted from a termination of employment
pursuant to Section 2(a)(iv) hereof; or
(D) any receipt by Xxxx of a direction or
instruction by, or ratified by, the Board of Directors of
Zions Arizona or the senior management or Board of Directors
of Zions Bancorp, to take or omit to take any action which in
the reasonable opinion of Xxxx, would, if complied with,
result in the commission by Xxxx, Zions Arizona or Zions
Bancorp of a violation of law, regulatory order or agreement
or a breach of his fiduciary duties, followed by the (x)
receipt by each of Zions Arizona and Zions Bancorp of written
notice by Xxxx setting forth Xxxx'x decision to resign from
his position as Chairman of the Board of Directors and Chief
Executive Officer of Zions Arizona or as a member of the Board
of Directors of Zions Arizona and his grounds for such
decision (the "Resignation Notice"), (y) expiration of a
period of 30 days commencing on the date of receipt by Zions
Arizona and Zions Bancorp of the Resignation Notice (the "Cure
Period") during which period neither Zions Arizona nor Zions
Bancorp has, in the reasonable opinion of Xxxx, modified,
rescinded or reversed the direction or instruction giving rise
to Xxxx'x grounds for resignation, set forth in the
Resignation Notice, and (z) receipt by Zions Arizona and Zions
Bancorp from Xxxx, within a period of 30 days commencing upon
the date of termination of the Cure Period, of an opinion of
legal counsel possessing requisite legal expertise in such
matters which concurs in Xxxx'x opinion that the direction or
instruction giving rise to Xxxx'x grounds for resignation set
forth in the Resignation Notice, would, if implemented (or if
already implemented, not modified, rescinded or reversed),
result in the commission by Xxxx, Zions Arizona or Zions
Bancorp, of a violation of law, regulatory order or agreement
or a breach of his fiduciary duties, and that any modification
thereto, rescission or reversal thereof by Zions Arizona or
Zions Bancorp made during the Cure Period would not be (or is
not) sufficient to render such instruction or direction, upon
its implementation, not a violation of law, regulatory order
or agreement or a breach of his fiduciary duties.
(b) During the 60-day period prior to each anniversary of the
Commencement Date, Zions Bancorp and Zions Arizona and Xxxx may, by mutual
agreement, which shall be in writing, extend the Term of Employment for an
additional one-year period. Any failure of Zions Bancorp and Zions Arizona and
Xxxx to so extend the Term of Employment shall not be deemed a termination of
the Term of Employment under Section 2(d) of this Agreement.
(c) In the event that the Term of Employment shall be
terminated for any of the reasons set forth in Section 2(a)(i), (iv) or (v),
Xxxx (or his estate, as the case may be) shall be entitled to receive, upon the
occurrence of any such event:
(i) any salary (as hereinafter defined) as payable
pursuant to Section 3(a)(i) hereof which shall have accrued as of the
Termination Date; and
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(ii) such rights as Xxxx shall have accrued as of
the Termination Date under the terms of any plans or arrangements in which he
participates pursuant to Sections 3(b) or (c) hereof, any right to
reimbursement for expenses accrued as of the Termination Date payable pursuant
to Section 3(b) 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(e) hereof.
(d) In the event that the Term of Employment shall be
terminated for any reason other than those set forth in Section 2(a)(i), (iv) or
(v), Xxxx shall be entitled to receive:
(i) promptly following the Termination Date, a lump
sum equal to all salary payable pursuant to Section 3(a)(i) hereof for the
period of two years commencing on the Termination Date; and
(ii) such rights as Xxxx may have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to Sections 3(b) or (c) hereof, any right to reimbursement
for expenses accrued as of the Termination Date payable pursuant to Section 3(b)
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(e) hereof.
(e) In the event that Xxxx resigns his position as Chairman of
the Board of Directors and Chief Executive Officers of Zions Arizona or as a
member of the Board of Directors of Zions Arizona, he shall be deemed to have
resigned from all positions set forth in Section 1 hereof.
3. Compensation.
For the services to be performed by Xxxx for Zions Bancorp and
Zions Arizona under this Agreement, Xxxx shall be compensated in the following
manner:
(a) Salary and Bonus.
(i) Salary. During the Term of Employment, Zions
Arizona shall pay Xxxx an initial base salary of $200,000 per annum. The amount
of the salary hereunder shall be reviewed at least annually by the Executive
Compensation Committee of the Board of Directors of Zions Bancorp and changes
thereto may be made in accordance with the compensation policies of Zions
Bancorp. Salary shall be payable in accordance with Zions Arizona's normal
payroll practices with respect to executive personnel as in effect from time to
time.
(ii) Bonus. During the Term of Employment and
beginning with the calendar year ending as of December 31, 1994, for each
calendar year in which the Operating Income (as defined below) of Zions Arizona
is not less than the Operating Income of the Bank for the calendar year ended
December 31, 1993, Xxxx shall be entitled to a bonus payment by Zions Arizona in
the amount of $53,000. Any bonus payable hereunder by Zions Arizona for any
calendar year shall be paid during the first calendar quarter of the succeeding
calendar year. For the purposes of this Section 3(a)(ii), Operating Income shall
have the meaning ascribed to it under generally accepted accounting principles
but shall not (x) with respect to the Bank and Zions Arizona during any calendar
year include any non-recurring gain or loss or any non-recurring income or
expense, (y) with respect to the Bank or Zions Arizona for any calendar year, be
reduced by the amount of performance bonus payments to management of the Bank
owed for services rendered in the calendar year ending as of December 31, 1993
as described in Section 7.4(i) of the Agreement and Plan of Reorganization, or
(z) with respect to the Bank or Zions Arizona in any calendar year be reduced by
extraordinary expenses incurred in connection with the transaction contemplated
in the Agreement and Plan of Reorganization (including, without limitation, any
additions to the loan loss reserves required by Zions Bancorp pursuant to
Section 4.9 of the Agreement and Plan of Reorganization or any professional fees
or expenses). The amount of bonus herewith shall be reviewed at least annually
by the Executive Compensation Committee of the Board of Directors of Zions
Bancorp and changes thereto may be made in accordance with the compensation
policies of Zions Bancorp.
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(b) Value-Sharing Plan and Executive Stock Option Plan. During
the Term of Employment, Xxxx shall be entitled to participate in the executive
value-sharing plan and the executive stock option plan of Zions Bancorp as in
effect as of the Commencement Date or as may be modified or added to by Zions
Bancorp from time to time, under such terms as may be applicable to officers of
Zions Bancorp or Zions Arizona of Xxxx'x rank.
(c) Employee Benefit Plans or Arrangements. During the Term of
Employment, Xxxx shall be entitled to participate immediately in all employee
benefit plans of Zions Bancorp or Zions Arizona, as presently in effect or as
they may be modified or added to by Zions Bancorp or Zions Arizona from time to
time under such terms as may be applicable to officers of Zions Bancorp or Zions
Arizona of Xxxx'x rank, including, without limitation, plans providing
retirement benefits, medical insurance, life insurance, disability insurance,
and accidental death or dismemberment insurance.
(d) Automobile. During the Term of Employment, Zions Arizona
will pay directly, or reimburse Xxxx, for lease payments and reasonable,
documented expenses of insurance, maintenance, garage and other out-of-pocket
expenses (collectively, the "Automobile Expenses"), related to Xxxx'x continued
use of such automobile as is provided, or whose expenses are paid for, by the
Company or the Bank as of June 30, 1993 and shall, at the expiration of any
applicable lease of such automobile during the Term of Employment, provide for
the balance of the Terms of Employment, at its expense (including all applicable
Automobile Expenses), a similar automobile, through, in its discretion, lease or
otherwise.
(e) Vacation and Sick Leave. During the Term of Employment,
Xxxx shall be entitled to paid annual vacation periods and sick leave in
accordance with the policies of Zions Bancorp or Zions Arizona as in effect as
of the Commencement Date or as may be modified by Zions Bancorp or Zions Arizona
from time to time as may be applicable to officers of Zions Bancorp or Zions
Arizona of Xxxx'x rank.
(f) Country Club. During the Term of Employment, Zions Arizona
shall pay for Xxxx'x continued membership in such country clubs whose membership
fees are paid by the Company or the Bank as of June 30, 1993.
(g) Withholding. All compensation to be paid to Xxxx hereunder
shall be subject to required withholding and other taxes.
(h) Expenses. During the Term of Employment, Xxxx shall be
reimbursed for reasonable travel and other expenses incurred or paid by Xxxx 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 Zions Bancorp or Zions Arizona as are in effect as of the
Commencement Date and as may be modified by Zions Bancorp or Zions Arizona under
such terms as may be applicable to officers of Zions Bancorp or Zions Arizona of
Xxxx'x rank.
4. Continued Vesting of Certain Stock Option Rights.
During the Term of Employment, any options to acquire Company
Common Stock (as that term is defined in the Agreement and Plan of
Reorganization) conferred upon Xxxx by the Company which are set forth as
Schedule B hereof (the "Company Stock Options") shall be deemed to continue to
vest at the times and in the amounts, and be exercisable during the periods of
time, set forth in Schedule B for the purpose of determining the convertibility
of the Company Stock Options into Zions Bancorp Stock (as that term is defined
in the Agreement and Plan of Reorganization) pursuant to Sections 1.8 of the
Agreement and Plan of Reorganization); provided that:
(a) in the event that the Term of Employment is terminated for
any of the reasons set forth in Section 2(a) hereof, the vesting of the Company
Stock Options shall cease as of the Termination Date and Xxxx (or his estate, as
the case may be) shall be entitled to exercise such Company Stock Options which,
in accordance with Schedule B hereof, are exercisable (but are as yet
unexercised) on or before the Termination Date, at any time on or prior to the
date of expiration of such Common Stock Options, in the manner permitted under
Section 1.8 of the Agreement and Plan of Reorganization; and
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(b) in the event that a change of control (as defined below)
occurs with respect to Zions Bancorp, Zions Bancorp will use its best efforts to
obtain for Xxxx treatment of the Company Stock Options by any acquirer of Zions
Bancorp which is comparable to that received by other members of executive
management of Zions Bancorp from such acquirer with respect to any options for
Zions Bancorp Stock to which they would be entitled under any plan or agreement.
For purposes of this Section 4, the term "change of control" with respect to
Zions Bancorp shall mean the occurrence of any of the following events:
(i) a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A as in effect on the date hereof pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"); provided that, without limitation, such a
change in control shall be deemed to have occurred at such time as any person
hereafter becomes a "beneficial owner" (as defined in Rule 13d-3 under Exchange
Act), directly or indirectly, of 25 percent or more of the combined voting power
of Zions Bancorp's securities ordinarily having the right to vote at elections
of directors (the "Voting Securities");
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of Zions Bancorp cease for any reason to constitute at least a
majority thereof for any reason other than retirement or resignation based
solely upon personal circumstances;
(iii)there shall be consummated (x) any consolidation
or merger of Zions Bancorp in which Zions Bancorp is not the continuing or
surviving corporation or pursuant to which Voting Securities thereof would be
converted into cash, securities, or other property, other than a merger of Zions
Bancorp in which the holders of Voting Securities immediately prior to the
merger have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease, exchange, or
other transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of Zions Bancorp, provided that any such
consolidation, merger, sale, lease, exchange or other transfer consummated at
the insistence of an appropriate banking regulatory agency shall not constitute
a change in control; or
(iv) approval by the shareholders of Zions Bancorp of
any plan or proposal for the liquidation or dissolution of Zions Bancorp.
5. Confidential Business Information; Non-Competition.
(a) Xxxx acknowledges that certain business methods of Zions
Bancorp and Zions Arizona, their creative techniques, customer lists, vendors,
consultants and other persons who render service or provide material to Zions
Bancorp or Zions Arizona, as well as certain other materials including marketing
plans and the like are deemed by Zions Bancorp and Zions Arizona to be and are
in fact confidential business information either of Zions Bancorp or Zions
Arizona or are entrusted to Zions Bancorp or Zions Arizona by third parties.
Accordingly, Xxxx agrees that he shall 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
Zions Arizona, nor shall he use to the detriment of Zions Bancorp or Zions
Arizona or use in any business or on behalf of any business competitive with or
substantially similar to any business of Zions Bancorp or Zions Arizona, any
confidential business information obtained during the course of his employment
by Zions Bancorp or Zions Arizona. The foregoing shall not be construed as
restricting Xxxx from disclosing such information to the employees of Zions
Bancorp or Zions Arizona.
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Such confidential information includes but is not limited to
procedures, methods, sales relationships developed while in Zions Bancorp's or
Zions Arizona's service, customers and their requirements, marketing plans, and
compositions, ideas, plans and methods belonging to or related to the affairs of
Zions Bancorp or Zions Arizona. In this regard, Zions Bancorp and Zions Arizona
assert proprietary rights in all of their business information except for such
information as is clearly in the public domain. Notwithstanding the foregoing,
the parties hereto agree that information which would be generally known or
available to persons skilled in Zions Bancorp's and Zions Arizona's fields shall
be considered to be "clearly in the public domain" for the purposes of the
preceding sentence.
(b) Xxxx hereby agrees that during the Term of Employment and
for a period of two years commencing on the Termination Date following the
termination of Xxxx'x employment pursuant to Sections 2(a)(i), (iv) or (v)
hereof, Xxxx will not (i) engage in the banking business other than on behalf of
Zions Bancorp or Zions Arizona, 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 and Zions Arizona)
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 Board of Directors of Zions Bancorp or Zions Arizona to engage in
any action prohibited under (i) or (ii) of this Section 5(b); provided, that the
ownership by Xxxx 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 traded in the over-the-counter market (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
Xxxx'x obligations under this Section 5(b). As used herein, "Market Area" shall
mean Maricopa County and Pima County in Arizona and any county or metropolitan
area in which Zions Arizona operates a branch or other facility for the
transaction of business. The Market Area as of any date subsequent to the Term
of Employment shall be determined as of the last day of the Term of Employment.
(c) Xxxx recognizes that irreparable injury shall result to
Zions Bancorp and Zions Arizona in the event of a breach of any of the
provisions of this Section 5 (the "Designated Provisions") and that Zions
Bancorp and Zions Arizona 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 Zions Bancorp
and Zions Arizona may have, Zions Bancorp and Zions Arizona shall be entitled to
injunctive relief (including, without limitation, specific performance) to
restrain the violation or breach thereof by Xxxx or any affiliates, agents or
any other persons acting for or with Xxxx in any capacity whatsoever.
(d) It is the desire and intent of the parties that the
provisions of this Section 5 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
5 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 5 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 Zions Bancorp and Zions Arizona,
the fullest extent permitted by applicable law, the benefits intended by this
Section 5.
6. Life Insurance. Zions Bancorp or Zions Arizona in its
discretion, may apply for and procure as owner and for its own benefit,
insurance on the life of Xxxx, in such amount and in such form as Zions Bancorp
or Zions Arizona may choose. Xxxx shall have no interest whatsoever in any such
policy or policies but, at the request of Zions Bancorp or Zions Arizona, 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 Zions Bancorp or Zions Arizona has applied for insurance.
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7. Representation and Warranty. Xxxx represents and warrants
to Zions Bancorp and Zions Arizona that the execution, delivery and performance
of this Agreement by Xxxx 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 Xxxx is or has been a party.
8. 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 or Zions Arizona:
Zions Bancorporation
0000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
With a required copy to:
Xxxxx X. Xxxxxx, Esq.
Metzger, Hollis, Xxxxxx & Xxxxxxxx
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
If to Xxxx:
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
All such notices shall be deemed to have been given on the
date delivered, transmitted, or mailed in the manner provided above.
9. Assignment. No party may assign this Agreement or any
rights or obligations hereunder without the consent of the other parties hereto.
10. Governing Law. This Agreement shall be construed and
governed in all respects by the law applicable to contracts made and to be
performed in the State of Arizona.
11. Entire Agreement. This Agreement constitutes the entire
understanding between Zions Bancorp, Zions Arizona and Xxxx relating to the
subject matter hereof. Any previous agreements or understandings between the
parties hereto regarding the subject matter hereof 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.
12. 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
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(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.
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. Headings. All headings are for convenience only and shall
not limit or define the text hereof.
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IN WITNESS WHEREOF, the parties hereto executed or caused this
Agreement to be executed as of the day and year first above written.
[The remainder of this page is intentionally left blank.]
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ZIONS BANCORPORATION
Attest:
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------- ---------------------------------------
Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
Secretary President and
Chief Executive Officer
ZIONS FIRST NATIONAL BANK OF ARIZONA
By: /s/ Xxx X. Xxxxxxx
----------------------------------- ---------------------------------------
[ ] Xxx X. Xxxxxxx
[ ] Chairman
/s/ Xxxx X. Xxxx
----------------------------------- ---------------------------------------
Xxxx X. Xxxx
12
SCHEDULE A
SCHEDULE OF AFFILIATIONS
Person or Entity Capacity
---------------- --------
American Southwest Mortgage Investment Corporation Director
Tucson Country Club Director
13
SCHEDULE B
SCHEDULE OF COMPANY STOCK OPTIONS
Number of
Date First Date of Company
Exercisable Expiration Shares Price
--------------------- ---------------------- ---------------------- ----------------------
11-26-89 11-26-99 8,000 $ 4.26
11-26-90 11-26-99 8,000 4.26
11-26-91 11-26-99 8,000 4.26
11-26-92 11-26-99 8,000 4.26
11-26-93 11-26-99 8,000 4.26
11-26-94 11-26-99 8,000 4.26
11-26-95 11-26-99 8,000 4.26
11-26-96 11-26-99 8,000 4.26
11-26-97 11-26-99 8,000 4.26
11-26-98 11-26-99 8,000 4.26
----------------------
80,000
6-6-92 6-6-97 4,000 $ 4.50
6-6-93 6-6-97 4,000 4.50
6-6-94 6-6-97 4,000 4.50
6-6-95 6-6-97 4,000 4.50
6-6-96 6-6-97 4,000 4.50
----------------------
20,000
----------------------
Total 100,000
======================
