As filed with the Securities Registration No. 333-
and Exchange Commission on ___________, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S - 8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ZIONS BANCORPORATION
(Exact name of registrant as specified in its charter)
UTAH 87-0227400
- --------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
ONE SOUTH MAIN, SUITE 1380
SALT LAKE CITY, UTAH 84111
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Aspen Bancshares, Inc. 1993 Non-Qualified Stock Option Plan For Directors
Aspen Bancshares, Inc. 1990 Incentive Stock Option Plan
Vectra Banking Corporation Employees' Equity Incentive Stock Option Plan
Vectra Banking Corporation Non-Employee Directors' Stock Option Plan
Vectra Banking Corporation 1989 Non-Statutory Stock Option Plan
Second Amended and Restated 1988
Stock Option Plan of FP Bancorp, Inc.
SBT Bankshares, Inc. 1995 Non-Qualified Stock Option Agreement
The Commerce Bancorporation 1995 Restated Incentive Compensation Plan
The Commerce Bancorporation 1987 Stock Option Plan
--------------------------------------------------
(Full title of plans)
Harris H. Simmons
President and Chief Executive Officer
ZIONS BANCORPORATION
One South Main, Suite 1380
Salt Lake City, Utah 84111
---------------------------------------
(Name and address of agent for service)
(801) 524-4787
(Telephone number, including area code, of agent for service)
Copy to:
Laurie S. Hart, Esq.
Callister Nebeker & McCullough
Gateway Tower East, Suite 900
10 East South Temple
Salt Lake City, Utah 84133
(801) 530-7300
<TABLE>
<CAPTION>
=====================================================================================================
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------
Title of each Proposed maximum Proposed maximum
class of securities Amount to be offering price aggregate offering Amount of
to be registered registered(1) per unit price registration fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
No Par Value 60,551(3) $ 13.62 $ 824,705 $ 229
<PAGE>
Common Stock,
No Par Value 43,791(4) $ 11.07 $ 484,766 $ 135
Common Stock,
No Par Value 131,687(5) $ 13.49 $1,776,458 $ 494
Common Stock,
No Par Value 15,410(6) $ 11.93 $ 183,841 $ 51
Common Stock,
No Par Value 29,309(7) $ 6.42 $ 188,164 $ 52
Common Stock,
No Par Value 79,183(8) $ 14.52 $1,149,737 $ 320
Common Stock,
No Par Value 95,174(9) $ 4.99 $ 474,918 $ 132
Common Stock,
No Par Value 268,271(10) $ 17.45 $4,681,329 $ 1,301
Common Stock,
No Par Value 7,587(11) $ 8.75 $ 66,386 $ 18
Total 730,963 $9,830,304 $ 2,732
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement is deemed to include
additional common stock issuable under the terms of the stock option
plans to prevent dilution resulting from any future share split, share
dividends and similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933 based on a
weighted average of the exercise price of options to purchase Zions
Bancorporation common stock issued under each of the stock option
agreements.
(3) Issuable pursuant to the Aspen Bancshares, Inc. 1993 Non-Qualified
Stock Option Plan for Directors.
(4) Issuable pursuant to the Aspen Bancshares, Inc. 1990 Incentive Stock
Option Plan.
(5) Issuable pursuant to the Vectra Banking Corporation Employees' Equity
Incentive Stock Option Plan.
(6) Issuable pursuant to the Vectra Banking Corporation Non-Employee
Directors' Stock Option Plan.
(7) Issuable pursuant to the Vectra Banking Corporation 1989 Non-Statutory
Stock Option Plan.
(8) Issuable pursuant to the Second Amended and Restated 198 Stock Option
Plan of FP Bancorp, Inc.
(9) Issuable pursuant to the SBT Bankshares, Inc. 1995 Non-Qualified Stock
Option Agreement.
(10) Issuable pursuant to The Commerce Bancorporation 1995 Restated
Incentive Compensation Plan.
(11) Issuable pursuant to The Commerce Bancorporation 1987 Stock Option
Plan.
This Registration Statement on Form S-8 is being filed by Zions
Bancorporation, a Utah corporation ("Zions") with respect to:
(a) 60,551 common shares, no par value (the "Common Shares"), of
Zions issuable upon exercise of options granted under the Aspen
Bancshares, Inc. 1993 Non-Qualified Stock Option Plan For
Directors, and
43,791 Common Shares issuable upon exercise of options granted
under the 1990 Incentive Stock Option Plan of Aspen Bancshares,
Inc. and pursuant to the Agreement and Plan of Reorganization
between Zions and Aspen Bancshares, Inc. dated November 19, 1996,
as amended on March 11, 1997;
(b) 131,687 Common Shares issuable upon exercise of options granted
under the Vectra Banking Corporation Employees' Equity Incentive
Stock Option Plan,
<PAGE>
15,410 Common Shares issuable upon exercise of options granted
under the Vectra Banking Corporation Non-Employee Directors'
Stock Option Plan, and
29,309 Common Shares issuable upon exercise of options granted
under the Vectra Banking Corporation 1989 Non-Statutory Stock
Option Plan and pursuant to the Agreement and Plan of Merger
between Zions and Vectra Banking Corp. dated September 23, 1997;
(c) 79,183 Common Shares issuable upon exercise of options granted
under the Second Amended and Restated 1988 Stock Option Plan of
FP Bancorp, Inc. (formerly known as ENB Holding Company) dated
January 1, 1988, as amended, and pursuant to the Agreement and
Plan of Merger dated December 29, 1997, between Zions and FP
Bancorp, Inc.;
(d) 95,174 Common Shares issuable upon exercise of options granted
under the SBT Bankshares, Inc. Non-Qualified Stock Option
Agreement dated April 17, 1995, as amended, and pursuant to the
Agreement and Plan of Reorganization dated December 19, 1997,
among Zions, Val Cor Bancorporation, Inc., a wholly-owned
subsidiary of Zions, SBT Bankshares, Inc., State Bank and Trust
of Colorado Springs, and Bank Colorado; and
(e) 268,271 Common Shares issuable upon exercise of options granted
under The Commerce Bancorporation 1995 Restated Incentive
Compensation Plan dated November 9, 1995, and pursuant to the
Agreement and Plan of Reorganization between Zions and The
Commerce Bancorporation, dated May 13, 1998; and
7,587 Common Shares issuable upon exercise of options granted
under The Commerce Bancorporation's 1987 Stock Option Plan, dated
October 23, 1987, as amended.
The Exhibit Index appears after the Signature Page of this Registration
Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUSES
Item I. Plan Information.*
Item II. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Introductory Note to Part I of Form S-8.
PART II
Item 3. Incorporation of Certain Documents by Reference
The following documents previously filed by Zions with the Commission
are incorporated by reference in this registration statement:
o Zions' Annual Report on Form 10-K for the year ended December
31, 1997;
o Zions' Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
o Zions' Current Reports on Form 8-K filed by Zions on February
6, 1998, April 3, 1998, April 15, 1998, May 18, 1998, May 27,
1998 (Form 8-K/A), and October 14, 1998;
o the description of Zions Common Shares which is contained in
Zions' registration statement on Form 10, and any amendment or
report filed to update such description; and
o the description of the Zions Rights Plan contained in Zions'
registration statement on Form 8-A dated October 10, 1996, and
any amendment or report filed to update such description.
All documents subsequently filed by Zions pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment that indicates that all securities offered have been
<PAGE>
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Articles of Incorporation of Zions provide that no director of
Zions will be personally liable to Zions or its shareholders for money damages
for any breach of fiduciary duty by such director while acting as a director,
except for liability:
(1) for any breach of the director's duty of loyalty to Zions or
its shareholders;
(2) for acts of omissions not in good faith or which involve
intentional misconduct or knowing violation of the law; or
(3) for any transaction from which the director obtained an
improper personal benefit.
Part 9 of the Utah Revised Business Corporation Act (the "Corporation
Act") contains provisions entitling directors and officers of Zions to
indemnification under certain conditions from judgments, fines, amounts paid in
settlement, and reasonable expenses, including attorneys' fees, as the result of
an action or proceeding in which they may be involved by reason of being or
having been a director or officer of Zions. Indemnification under the
Corporation Act is generally permissible if the conduct of the director or
officer was in good faith and the director or officer reasonably believed that
his conduct was in, or not opposed to, Zions' best interests, and, in a criminal
case, that the director or officer had no reasonable cause to believe his
conduct was unlawful. Such indemnification would not be permitted under the
Corporation Act in connection with a proceeding by or in the right of Zions in
which the director or officer was adjudged liable to Zions, or in connection
with any other proceeding in which the officer or director was adjudged liable
on the basis that he obtained an improper personal benefit.
Mandatory indemnification is required under the Corporation Act for a
director or officer who is successful, on the merits or otherwise, in the
defense of any proceeding, or any claim, issue or matter in a proceeding, to
which he was a party because he is or was an officer or director of Zions. A
court may order indemnification where mandatory under the Corporation Act or if
the court determines that the officer or director is fairly and reasonably
entitled to indemnification in view of all relevant circumstances and regardless
of whether the officer or director met the applicable standard of conduct or was
adjudged liable to Zions or adjudged liable on the basis that he derived an
improper personal benefit.
Payment of expenses for officers and directors is permitted in advance
of a final disposition of a proceeding on certain conditions, including the
furnishing of written affirmation by the officer or director of his good faith
belief that he has met the applicable standard of conduct, the furnishing of a
written agreement to repay the advance if the officer or director is ultimately
determined not to have met the applicable standard of conduct, and a
determination is made that the facts then known to the persons making the
determination would not preclude indemnification under the Corporation Act. This
determination is to be made either by the Board of Directors, a committee of the
Board of Directors, special counsel, or the shareholders, under conditions and
procedures generally designed to assure the independence of the body making the
determination.
<PAGE>
Zions maintains officers' and directors' indemnity insurance against
expenses of defending claims or payment of amounts arising out of good-faith
conduct believed by the officer or director to be in or not opposed to the best
interests of Zions.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling Zions
pursuant to the foregoing arrangements, Zions has been informed that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Does not apply.
Item 8. Exhibits
The following is a list of exhibits filed as part of this Registration
Statement:
Exhibit No.
(Per Regulation S-K,
Exhibit Table) Exhibit - Description and Method of Filing
- --------------------------------------------------------------------------------
4.1 Restated Articles of Incorporation of
Zions Bancorporation dated November 8,
1993, and filed with the Utah Division of
Corporations and Commercial Code on
November 9, 1993 (incorporated by
reference to Exhibit 3.1 to Zions' Form
S-4 Registration Statement, File No.
33-51145, filed on November 22, 1993)
4.2 Restated Bylaws of Zions Bancorporation,
dated November 8, 1993 (incorporated by
reference to Exhibit 3.2 to Zions' Form
S-4 Registration Statement, File No.
33-51145, filed November 22, 1993)
4.3 Amendment to the Restated Bylaws of Zions
Bancorporation, dated September 18, 1998
(incorporated by reference to Exhibit 3
to Zions' Quarterly Report on Form 10-Q
for the quarter ended September 30, 1998,
File No. 0-02610)
4.4 Articles of Amendment to the Restated
Articles of Incorporation of Zions
Bancorporation dated April 30, 1997 and
filed with the Utah Division of
Corporations and Commercial Code on May
2, 1997 (incorporated by reference to
Exhibit 3.1 of Zions Bancorporation's
Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997, File No.
0-2610.)
4.5 Articles of Amendment to the Restated
Articles of Incorporation of Zions
Bancorporation dated April 24, 1998 and
filed with the Utah Division of
Corporations and Commercial Code on April
27, 1997 (incorporated by reference to
Exhibit 3 of Zions Bancorporation's
Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998, File
No. 0-02610.)
4.6 Shareholder Protection Rights Agreement,
dated as of September 27, 1996, between
Zions Bancorporation and Zions First
National Bank as Rights Agent
(incorporated by reference to Exhibit 1
to Zions' Form 8-K, filed October 12,
1996)
4.7 Aspen Bancshares, Inc. 1993 Non-Qualified
Stock Option Plan for Directors
(incorporated by reference to Exhibit
10.4 of Aspen Bancshares, Inc.'s Annual
Report on Form 10-K for the year ended
December 31, 1996, File No. 0-19376.
4.8 Aspen Bancshares, Inc. 1990 Incentive
Stock Option Plan (incorporated by
reference to Exhibit 10.3 of Aspen
Bancshares, Inc.'s Annual Report on Form
10-K for the year ended December 31,
1996, File No. 0-19376.
4.9 Vectra Banking Corporation Employees'
Equity Incentive Stock Option Plan
(incorporated by reference to Exhibit
10.1 of Vectra Banking Corporation's SB-2
Registration Statement, File No.
33-74724, effective March 23, 1994)
<PAGE>
4.10 Vectra Banking Corporation Non-Employee
Directors' Stock Option Plan
(incorporated by reference to Exhibit
10.2 of Vectra Banking Corporation's SB-2
Registration Statement, File No.
33-74724, effective March 23, 1994)
4.11 Vectra Banking Corporation 1989
Non-Statutory Stock Option Plan
(incorporated by reference to Exhibit
10.3 of Vectra Banking Corporation's SB-2
Registration Statement, File No.
33-74724, effective March 23, 1994)
4.12 Second Amended and Restated 1988 Stock
Option Plan of FP Bancorp, Inc. (formerly
known as ENB Holding Company), as amended
on November 23, 1993 and March 22, 1994
(incorporated by reference to Exhibit 4.1
of ENB Holding Company's Form S-8
Registration Statement, filed April 26,
1994, File No. 33-32788)
4.13 SBT Bankshares, Inc. 1995 Non-Qualified
Stock Option Agreement - filed herewith
4.14 First Amendment to the SBT Bankshares,
Inc. 1995 Non-Qualified Stock Option
Agreement - filed herewith
4.15 The Commerce Bancorporation 1995 Restated
Incentive Compensation Plan - filed
herewith
4.16 The Commerce Bancorporation 1987 Stock
Option Plan - filed herewith
5.1 Opinion of Callister Nebeker & McCullough
Regarding Legality - filed herewith
23.1 Consent of KPMG Peat Marwick LLP,
Independent Auditors filed herewith
23.2 Consent of Callister Nebeker & McCullough
(included in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
Item 9. Undertakings
Zions hereby undertakes:
(1) (a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Zions pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE>
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(2) Zions hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of Zions' annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of Zions pursuant to the foregoing provisions, or otherwise,
Zions has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by Zions of expenses incurred or paid by a director,
officer or controlling person of Zions in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
Zions will, unless in the opinion of its counsel the matter has been
settled by the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Zions (Registrant)
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Salt Lake, State of Utah, on the 3rd day of December
1998.
ZIONS BANCORPORATION
By:/S/ Harris H. Simmons
---------------------
Harris H. Simmons, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Harris H. Simmons and Dale M. Gibbons, and each of them, his or her
true and lawful attorneys-in-fact and agents, with full powers of substitution
and resubstitution for him in his name, place, and stead, in any and all
capacities to sign any and all pre-effective amendments to this Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 3rd day of December 1998.
/S/ Harris H. Simmons President, Chief Executive December 3, 1998
- --------------------- Officer and Director
Harris H. Simmons
/S/ Dale M. Gibbons Executive Vice President December 3, 1998
- --------------------- and Chief Financial Officer
Dale M. Gibbons
/S/ Nolan X. Bellon Senior Vice President December 3, 1998
- --------------------- and Controller
Nolan X. Bellon
/S/ Roy W. Simmons Chairman and Director December 3, 1998
- ---------------------
Roy W. Simmons
/S/ Jerry C. Atkin Director December 3, 1998
- ---------------------
Jerry C. Atkin
/S/ R.D. Cash Director December 3, 1998
- ---------------------
R.D. Cash
/S/ L.E. Simmons Director December 3, 1998
- ---------------------
L.E. Simmons
/S/ Grant R. Caldwell Director December 3, 1998
- ---------------------
Grant R. Caldwell
/S/ I.J. Wagner Director December 3, 1998
- ---------------------
I.J. Wagner
/S/ Roger B. Porter Director December 3, 1998
- ---------------------
Roger B. Porter
/S/ Richard H. Madsen Director December 3, 1998
- ---------------------
Richard H. Madsen
<PAGE>
/S/ Robert G. Sarver Director December 3, 1998
- ---------------------
Robert G. Sarver
/S/ Shelley Thomas Director December 3, 1998
- ---------------------
Shelley Thomas
<PAGE>
EXHIBIT INDEX
ZIONS BANCORPORATION
Aspen Bancshares, Inc. 1993 Non-Qualified Stock Option Plan For Directors
Aspen Bancshares, Inc. 1990 Incentive Stock Option Plan
Vectra Banking Corporation Employees' Equity Incentive Stock Option Plan
Vectra Banking Corporation Non-Employee Directors' Stock Option Plan
Vectra Banking Corporation 1989 Non-Statutory Stock
Option Plan Second Amended and Restated 1988 Stock Option
Plan of FP Bancorp, Inc.
SBT Bankshares, Inc. 1995 Non-Qualified Stock Option Agreement
The Commerce Bancorporation 1995 Restated Incentive Compensation Plan
The Commerce Bancorporation 1987 Stock Option Plan
<TABLE>
<CAPTION>
FORM S-8
Exhibit No.
(Per Regulation S-K, Sequentially
Exhibit Table) Exhibit Numbered Page
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
4.1 Restated Articles of Incorporation of Zions *
Bancorporation dated November 8, 1993, and
filed with the Utah Division of Corporations and
Commercial Code on November 9, 1993
(incorporated by reference to Exhibit 3.1 to
Zions' Form S-4 Registration Statement, File No.
33-51145, filed on November 22, 1993)
4.2 Restated Bylaws of Zions Bancorporation, dated *
November 8, 1993 (incorporated by reference to
Exhibit 3.2 to Zions' Form S-4 Registration
Statement, File No. 33-51145, filed November
22, 1993)
4.3 Amendment to the Restated Bylaws of Zions *
Bancorporation, dated September 18, 1998
(incorporated by reference to Exhibit 3 to Zions'
Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, File No. 0-02610)
4.4 Articles of Amendment to the Restated Articles of *
Incorporation of Zions Bancorporation dated April
30, 1997 and filed with the Utah Division of
Corporations and Commercial Code on May 2, 1997
(incorporated by reference to Exhibit 3.1 of
Zions Bancorporation's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997, File
No. 0-2610.
<PAGE>
Exhibit No.
(Per Regulation S-K, Sequentially
Exhibit Table) Exhibit Numbered Page
- -----------------------------------------------------------------------------------------------------------------------
4.5 Articles of Amendment to the Restated Articles of *
Incorporation of Zions Bancorporation dated April
24, 1998 and filed with the Utah Division of
Corporations and Commercial Code on April 27,
1998 (incorporated by reference to Exhibit 3 of
Zions Bancorporation's Quarterly Report on Form
10-Q for the quarter ended September 30, 1998,
File No. 0-02610.
4.6 Shareholder Protection Rights Agreement, dated *
as of September 27, 1996, between Zions
Bancorporation and Zions First National Bank as
Rights Agent (incorporated by reference to Exhibit
1 to Zions' Form 8-K, filed October 12, 1996)
4.7 Aspen Bancshares, Inc. 1993 Non-Qualified Stock *
Option Plan for Directors (incorporated by
reference to Exhibit 10.4 of Aspen Bancshares,
Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1996, File No. 0-19376.
4.8 Aspen Bancshares, Inc. 1990 Incentive Stock *
Option Plan (incorporated by reference to Exhibit
10.3 of Aspen Bancshares, Inc.'s Annual Report on
Form 10-K for the year ended December 31,
1996, File No. 0-19376.
4.9 Vectra Banking Corporation Employees' Equity *
Incentive Stock Option Plan (incorporated by
reference to Exhibit 10.1 of Vectra Banking
Corporation's SB-2 Registration Statement, File
No. 33-74724, effective March 23, 1994)
4.10 Vectra Banking Corporation Non-Employee *
Directors' Stock Option Plan (incorporated by
reference to Exhibit 10.2 of Vectra Banking
Corporation's SB-2 Registration Statement, File
No. 33-74724, effective March 23, 1994)
4.11 Vectra Banking Corporation 1989 Non-Statutory *
Stock Option Plan (incorporated by reference to
Exhibit 10.3 of Vectra Banking Corporation's SB-
2 Registration Statement, File No. 33-74724,
effective March 23, 1994)
<PAGE>
Exhibit No.
(Per Regulation S-K, Sequentially
Exhibit Table) Exhibit Numbered Page
- -----------------------------------------------------------------------------------------------------------------------
4.12 Second Amended and restated 1988 Stock Option *
Plan of FP Bancorp, Inc. (formerly known as
ENB Holding Company), as amended on
November 23, 1993 and March 22, 1994
(incorporated by reference to Exhibit 4.1 of ENB
Holding Company's Form S-8 Registration
Statement, filed April 26, 1994, File No. 33-
32788)
4.13 SBT Bankshares, Inc. 1995 Non-Qualified Stock
Option Agreement - filed herewith
4.14 First Amendment to the SBT Bankshares, Inc.
1995 Non-Qualified Stock Option Plan - filed
herewith
4.15 The Commerce Bancorporation 1995 Restated
Incentive Compensation Plan - filed herewith
4.16 The Commerce Bancorporation 1987 Stock Option
Plan - filed herewith
5.1 Opinion of Callister Nebeker & McCullough
Regarding Legality - filed herewith
23.1 Consent of KPMG Peat Marwick LLP,
Independent Auditors - filed herewith
23.2 Consent of Callister Nebeker & McCullough *
(included in Exhibit 5.1)
24.1 Power of Attorney (see signature page) *
</TABLE>
Exhibit 4.13
SBT BANKSHARES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement"), made this 17th
day of April, 1995, between SBT BANKSHARES, INC., a Colorado corporation,
(hereinafter called "the Corporation")and John G. Jackson, Scott E. Pursley,
Gary Markle, Bernard F. Carter and Robert A. Cadican (hereinafter individually
called the "Grantee" or collectively "Grantees").
WITNESSETH:
WHEREAS, the Corporation desires to grant stock options ("Options") to
purchase shares of the par value common stock of the Corporation ("Stock"), to
the directors and certain key employees of the Corporation or of State Bank and
Trust of Colorado Springs ("Bank,"), such key persons to be selected by the
Board of Directors from time to time; and
WHEREAS, the Grantees have been designated by the Board of Directors to
participate in the Agreement and thereby to acquire a proprietary interest in
the Corporation so that they shall have a further incentive for continuing their
association with the Corporation and increasing their efforts on its behalf.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows
1. Purpose. This Agreement is intended as an incentive and to encourage
ownership of Corporation Stock by Grantees. The Options granted pursuant to this
Agreement are intended as a separate incentive for the Grantees and not in
consideration for the Grantee's agreeing to reduce their salary or fee, to
forego any increase in salary or fee or to defer any amount of existing
compensation.
2. Administration of Plan.
-----------------------
(a) The Corporation Board of Directors ("Board") shall,
subject to the provisions of this Agreement, have plenary authority in its
discretion to determine:
(i) the key employees of the Corporation or Bank and
other individuals to whom Options shall be granted which individual may
be added from time to time and when designated shall become a party to
and be subject to this Agreement;
(ii) the number of shares to be covered by each of
the Options;
(iii) the exercise price for shares subject to each
of the Options;
<PAGE>
(iv) the time or times at which Options shall be
granted;
(v) the interruption of the Agreement; and
(vi) rules and regulations relating to the Agreement.
(b) A majority of the Board shall constitute a quorum, All
actions of the Board shall be taken by a majority of its members. All decisions,
determinations and interpretations of the Board shall be final and binding on
all Grantees and any other holders of Options granted under this Plan.
(c) The Board may, in its discretion, delegate its duties to
an Administrative Committee which shall include at least one member of the
Board.
(d) The Board or the Administrative Committee may delegate in
its discretion certain of its ministerial duties to any officer or employee, or
a committee composed of officers or employees of the Corporation but may not
delegate its authority to make the determinations specified in items (i) through
(vi) of Subsection (a) of this Section 2.
(e) Notwithstanding any other provision in this Subsection
(2), the Board shall not have the authority to change the terms and conditions
of the Options contained in this Agreement and shall have such authority in
regards to future Options granted pursuant to this Agreement.
3. Persons Eligible. Persons eligible to receive Options pursuant to
-----------------
this Agreement are: (1) key employees of the Corporation or Bank as determined
by the Board; (2) members of the Board or the Board of the Bank; and (3) any
other individuals, as may be determined by the Board, who are instrumental in
promoting the objectives of the Corporation or the Bank.
4. Establishment of Plan Ledger. The Board shall establish an
-------------------------------
appropriate record (hereinafter referred To as the "Plan Ledger") and thereafter
from time to time shall enter therein the name of each Grantee, the quantity of
Options granted to him by the Board, the exercise price for the Options granted,
the vesting status of the Options, and any other information deemed appropriate
for purposes of this Agreement.
5. Stock. The stock subject to Options shall be shares of the
-----
Corporation's authorized but unissued common stock or treasury stock. Subject to
the provisions of Section 10 of this Agreement, the aggregate number of options
for shares which may be issued under this Agreement shall not exceed a total of
20,000. The Corporation shall at all times during the term of this Agreement
reserve and keep available sufficient, unissued shares or issued shares which
have been reacquired by the Corporation to satisfy the requirements of this
Agreement.
If an Option should expire or become unexercisable for any reason
without having been exercised in full,the unpurchased Stock which were subject
to the Option shall, unless this Agreement shall have been terminated, become
available for other Options under this Agreement.
<PAGE>
6. Establishment of Stock Options.
-------------------------------
(a) The Corporation hereby grants to the Grantee designated
below an Option to acquire the number of shares of Stock of Corporation after
the Vesting Date set forth on the terms and conditions hereinafter set forth at
the purchase price set forth in subsection (b) of this Section 6.
<TABLE>
<CAPTION>
GRANTEE: John G. Jackson
<S> <C> <C>
NUMBER OF STOCK VESTING DATE OF OPTION
GRANTED PURSUANT TO OPTION
2500 December 31, 1994
500 December 31, 1995
500 December 31, 1996
500 December 31, 1997
500 December 31, 1998
500 December 31, 1999
GRANTEE: Scott E. Pursley
NUMBER OF STOCK VESTING DATE OF OPTION
GRANTED PURSUANT TO OPTION
1250 December 31, 1994
500 December 31, 1995
500 December 31, 1996
500 December 31, 1997
500 December 31, 1998
500 December 31, 1999
GRANTEE: Gary Markle
NUMBER OF STOCK VESTING DATE OF OPTION
GRANTED PURSUANT TO OPTION
1250 December 31, 1994
500 December 31, 1995
500 December 31, 1996
500 December 31, 1997
500 December 31, 1998
500 December 31, 1999
<PAGE>
GRANTEE: Bernard F. Carter
NUMBER OF STOCK VESTING DATE OF OPTION
GRANTED PURSUANT TO OPTION
1250 December 31, 1994
500 December 31, 1995
500 December 31, 1996
500 December 31, 1997
500 December 31, 1998
500 December 31, 1999
GRANTEE: Robert A. Cadigan
NUMBER OF STOCK VESTING DATE OF OPTION
GRANTED PURSUANT TO OPTION
1250 December 31, 1994
500 December 31, 1995
500 December 31, 1996
500 December 31, 1997
500 December 31, 1998
500 December 31, 1999
(b) Option Price. The option price per share ("Option Price")
-------------
shall be according to the following schedule and shall be payable in cash upon
the exercise' of the Option.
FOR STOCK VESTED ON: OPTION PRICE:
December 31, 1994-- $21.63
December 31, 1995-- $23.79
December 31, 1996-- $25.96
December 31, 1997-- $28.12
December 31, 1998-- $30.28
December 31, 1999-- $32.45
(c) Exercise Date. Options may be exercised at any time, or
--------------
from time to time, after the date the Option has vested as provided in this
Section 6. This Agreement shall not be construed to require the option rights of
the Grantee to be exercisable in installments at fixed intervals. Grantees may
only exercise Options pursuant to the terms and conditions of this Agreement.
(d) Expiration. Notwithstanding any other provision of this
----------
Agreement an Option is not exercisable after the expiration of 10 years from the
date which the Option has vested as set forth in this Agreement or after the
occurrence of any one of the following events, whichever may be earlier:
Addendum 1
Addendum to page 3 item 6(a) and 6(b)
<PAGE>
GRANTEE: Craig Engelage
NUMBER OF STOCK VESTING DATE OPTION
GRANTED PURSUANT TO OPTION OF OPTION PRICE
200 12/31/95 32.94
200 12/31/96 36.23
200 12/31/97 39.52
200 12/31/98 42.81
200 12/31/99 46.10
GRANTEE: Suzanne Clift
NUMBER OF STOCK VESTING DATE OPTION
GRANTED PURSUANT TO OPTION OF OPTION PRICE
200 12/31/95 32.94
200 12/31/96 36.23
200 12/31/97 39.52
200 12/31/98 42.81
200 12/31/99 46.10
GRANTEE: Buck Blessing
NUMBER OF STOCK VESTING DATE OPTION
GRANTED PURSUANT TO OPTION OF OPTION PRICE
200 12/31/95 32.94
200 12/31/96 36.23
200 12/31/97 39.52
200 12/31/98 42.81
200 12/31/99 46.10
GRANTEE: Terry W. Darby
NUMBER OF STOCK VESTING DATE OPTION
GRANTED PURSUANT TO OPTION OF OPTION PRICE
200 12/31/95 46.19
200 12/31/96 50.81
200 12/31/97 55.43
200 12/31/98 60.05
200 12/31/99 64.67
</TABLE>
(i) Termination of employment or association with
the Corporation or Bank, irrespective of whether the termination is voluntary or
otherwise, except that (1) in the case of Employees who are Grantees
("Employee-Grantees") termination shall not occur in the case of total and
permanent disability until the determination required in (iii) below shall have
been made; and (2) the Board shall have the discretion to permit exercise of the
Options after termination;
(ii) Retirement in accordance with the Corporation's
retirement policies;
(iii) In the case of an Employee-Grantee's, total
and permanent disability, which shall be determined by the Board of Directors,
after medical advice, and its
<PAGE>
determination an any such question shall be in all respects final and
controlling. In the event of a determination of total and permanent
disability,the Employee-Grantee, or his legal representative, shall have the
right at any time within One Hundred Twenty (120) days after receipt of notice
of determination of total and permanent disability to exercise any Options
granted hereunder to the extent the Employee-Grantee could have exercised such
Option immediately before such determination pursuant to the provisions of
Paragraph 2,subject, however, to the condition that no Option shall be
exercisable after the expiration of the 10 year Option term stated in this
Agreement or as otherwise provided in this Paragraph (d); and
(iv) If the Grantee shall die during his employment
or association as a director with the Corporation or any of its subsidiaries,
and shall not have fully exercised any Option granted hereunder, the same may be
exercised at anytime within One Hundred Twenty (120) days of the
Employee-Grantee's death by the Employee-Grantee's personal representative,
beneficiary or legal heirs to the extent the Employee-Grantee could have
exercised such Option immediately before his death pursuant to the provisions of
Paragraph 2, subject however, to the condition that no Option shall be
exercisable after the expiration of the 10 year Option term stated in this
Agreement. The Option shall, be exercised only by the Grantee's transferee, who
shall be the person or persons entitled to the Option under the Grantee's will,
or, if he shall fail to make testamentary disposition of the Option, his legal
representative or legal heirs. Any transferee exercising the Option must furnish
the Corporation (i) written notice of his status as transferee; (ii) evidence
satisfactory to the Corporation to establish the validity of the transfer of the
Option, and compliance with any laws or regulations pertaining to said transfer,
and (iii) written acceptance by the transferee of the terms and conditions of
the Option as prescribed in this Agreement.
(v) As to any Grantee who serves as a Corporation or
Bank director, then 60 days after the Grantee ceases to serve as a director of
Corporation or Bank. A Grantee shall cease to serve as a director of the
Corporation or Bank if he resigns or is not re-elected to the Board of the
Corporation or the Bank. The provisions of this subsection shall not be
applicable if. (1) the Grantee continues to be employed as an officer of the
Corporation or Bank but is no longer a director; and he continues to serve in
such capacity; or (ii) the Grantee dies during his employment or association as
a director of the Corporation or Bark A Grantee shall not be entitled to any
Options under Section 6 unless he is serving as a director of the Corporation or
Bank on December '71 of each year. The 60 day period set forth herein does not
serve to extend a Grantee's service for the purpose of vesting additional
Options.
(e) Rights as Shareholder. Neither the Grantee nor any person
---------------------
claiming under or through him shall be or have any of the rights or privileges
of a shareholder of the Corporation in respect of any of the Stock issuable upon
the exercise of the Option, unless and until the date the Corporation shall have
received fall payment of the Option price required by Section 6(b) of this
Agreement.
(f) Additional Options. Subject to the provisions of this
-------------------
Agreement the, Board may hereby grant additional Options to purchase share of
the Corporation Stock to key employees. Additional Options may be granted to
Grantees at such times as the Board may deem appropriate in its discretion.
<PAGE>
7. Vesting Requirements Forfeiture of Options. No Option shall be
---------------------------------------------
exercisable until it has vested. Options shall vest according to the schedule
set forth in Section 6(a). A Grantee's right to full enjoyment of options
transferred pursuant to this Agreement is conditioned upon the future
performance of substantial services by such Grantee as set forth in this
Agreement. If such Grantee is not employed by the Corporation or Bank at
December 31 of each year denoted in Section 6(a) for any reason other than
death, he shall forfeit, without any consideration, any Stock Option to the
Corporation which has not been vested as of the date of termination. Forfeiture
of Options an the death of a Grantee shall be governed in accordance with
Section 6(d)(iii). A Grantee who dies prior to December 31, but within 120 days
of such Vesting Date, shall not vest in any Options for the year of his death as
the Grantee shall not be deemed to be employed or associated with the Bank or
Corporation on December 31 by virtue of the 120 day period set forth in Section
6(d)(iii).
8. Notice of Exercise of Options. Options may be exercised by giving
-----------------------------
written notice to the Corporation specifying the number of shares of Stock to be
purchased. Any written notice to be given to the Corporation under the terms of
this Agreement shall be addressed to the Corporation, in care of its Secretary,
at the Corporation's then current address. Any written notice to be given to the
Grantee shall be addressed to the Grantee at the address hereinafter set forth
by the Grantee or as the Grantee may hereafter designate in writing. Any such
written notice shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope, addressed as aforesaid, registered and deposited,
postage and registry fee prepaid, in a post office or branch post office
regularly maintained by the United States Government.
9. Limitation on Rights. Nothing contained in this Plan shall be
----------------------
construed to:
(a) Give any employee of the Corporation or any of its
subsidiaries any right to be granted any Options under the terms of this Plan
other than in the sole discretion of the Board of Directors.
(b) Limit in any way the right of the Corporation to terminate
a Grantee's employment or association with the Corporation or its subsidiaries
at any time; or
(c) Be evidence of any agreement or understanding, express or
implied- that the Corporation or its subsidiaries, will employ a Grantee in any
particular position or at any particular rate of remuneration.
10. Adjustment Provisions. The number of shares of Stock specified in
----------------------
Section 5 above,and/or price per share specified in Section 6(b) above, are
subject to appropriate adjustment, as provided in this Section 10.
(a) Subdivision or Consolidation of Stock. Subject to any
----------------------------------------
required action by the Corporation's shareholders, the number of shares of Stock
covered by each outstanding Option, and the price per share thereof of each such
Option, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of stock of the Corporation resulting from a subdivision
or consolidation of shares or any other increase or decrease in the number of
such shares effected without receipt of consideration by the Corporation.
<PAGE>
(b) Merger, Consolidation, Liquidation or Other Form or
---------------------------------------------------------
Reorganization. If the Corporation shall be the surviving corporation in any
- --------------
merger or consolidation, each outstanding Option shall pertain to and apply to
the securities to which a holder of the number of shares of stock subject to the
Option would be entitled. If the Corporation is a party to a dissolution,
liquidation, merger, consolidation or other form of reorganization in which the
Corporation is not the surviving corporation, the Corporation shall provide the
surviving corporation with the option and right, at the surviving corporation's
election, to continue this Agreement in effect at the date of reorganization on
a basis by which each Option shall pertain and apply to the securities to which
a holder of the number of sham of stock subject to this Option would be entitled
to in the reorganization. If the surviving corporation shall not elect to
continue the Plan and this Agreement each outstanding Option shall terminate,
provided that the Grantee shall, in such event, have the right to exercise his
Options in whole or in pan immediately prior to such dissolution, liquidation,
merger, consolidation or other form of reorganization in which the Corporation
is not the surviving corporation. The preceding sentence shall apply to all the
Grantee's Options notwithstanding the fact that the Options have not fully
vested in accordance with Sections 6(a) and 7. In the event Grantee elects his
rights pursuant to this subsection, the price per share shall be the price set
forth in Section 6(b) as of the year-end preceding the election.
(c) Stock Sale of Fifty-One Percent (51%) of Corporation. If
-----------------------------------------------------
fifty-one percent (51%) of the Corporation Stock is sold, or substantially all
the assets of the Corporation are sold to another party in one transaction, each
outstanding Options(s) shall terminate, provided that the Grantee shall, in such
event, have the right to exercise his Options, in whole or in part, immediately
prior to the consummation of the Stock Purchase. The preceding sentence shall
apply to ail of the Grantee's Options notwithstanding the fact that the Options
were riot My vested. in accordance with Sections 6(a) and 7. Notwithstanding the
provisions of Section 6(b)regarding the Option Price, in the event of the sale
of fifty-one percent (5 1%) of the Corporation Stock, and the Grantee elects his
rights pursuant to this subsection, the price per share shall be the price set
forth in Section 6(b) as of the yew-end preceding the election.
(d) Change of Stock. In the event of a change in the Stock of
---------------
the Corporation as presently constituted, which is limited to a change of all of
its authorized shares -with par value into the same number of shares with a
different par value or without par value, the shares resulting from any such
change shall be deemed to be the Stock within the meaning of this Agreement.
(e) Limitations. To the extent that the foregoing adjustments
-----------
relate to Stock of the Corporation, such adjustments shall be made by the Board
of Directors, whose determination in that respect shall be final, binding and
conclusive. The Options granted pursuant to this Agreement shall not affect in
anyway the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate, or sell, or
transfer all or any part of its business or assets. Except as expressly provided
elsewhere in this Section 10, the Grantee shall have no rights by reason of the
Corporation undertaking any of the activities set forth in this Section.
<PAGE>
11. Amendment or Termination of Agreement.
-------------------------------------
(a) The Board may terminate this Agreement at any time.
(b) The Board may, in its sole discretion, amend this
Agreement at any time, except that without approval by a vote of the holders of
a majority of the outstanding shares of stock the aggregate number of shares
subject to Options which may be awarded to all Grantees may not be increased
except as provided in Section 10 hereof.
(c) Any amendment or termination of this Agreement shall not
affect the rights of Grantees or Beneficiaries under the Options vested at the
time of such amendment or termination.
12. Nontransferability. Except as otherwise provided herein, during
------------------
the lifetime of the Grantee, the Options shall be exercisable only by him and
neither any Option nor any other right or privilege granted pursuant to this
Agreement shall be sold, transferred, pledged, assigned, hypothecated, or
otherwise disposed of in any manner (whether by operation of law or otherwise)
and shall not be subject to sale under execution, attachment or similar process.
Except as otherwise provided in this Agreement, any attempt, voluntarily or
otherwise, to transfer, assign, pledge, hypothecate or otherwise dispose of said
Options, or of any right or privilege conferred by this Agreement. or any
attempted sale under any execution, attachment or similar process upon the
rights and privileges conferred by this Agreement, shall in the discretion of
the Board, cause said Options and the rights and privileges conferred by this
Agreement to become null and void. No right or benefit hereunder shall in any
manner be liable for or subject to the debts, contracts, liabilities or torts of
the person entitled to such benefits. To the extent that Section 6(d)(iv) shall
be applicable upon the death of the Grantee, his personal representative,
beneficiaries and legal heirs shall be subject to the terms of this Agreement in
the same manner as the Grantee during his lifetime.
13. Shareholder Agreement. With the execution of this Agreement, each
---------------------
Grantee agrees to and affirms the provisions of the Corporation's Shareholders
Agreement dated April 14, 1994, and all shares transferred to the Grantee
pursuant to this Agreement shall be subject thereto. Each Employee shall execute
an execution page of said Shareholders Agreement prior to the issuance of any
Stock hereunder.
14. Stock Certificate Legend. To effectuate this Agreement, the
--------------------------
Secretary of the Corporation shall affix the following legend on the face of
each certificate representing shares issued to the Grantees pursuant to this
Agreement:
"Ownership, encumbrance, pledge, assignment transfer or other
disposition of this certificate of stock or any shares issued
in lieu thereof, are subject to the restrictions contained in
the Stock Option Agreement April 17, 1995 and a Shareholders
Agreement dated April 14, 1994, a copy of which is on file in
the office of the Secretary of the Corporation."
<PAGE>
15. Responsibility for Taxes. Grantee shall be solely responsible for
------------------------
all federal, state and local income taxes or other taxes payable as a result of
the issuance and receipt of stock, or subsequent dividends or other
distributions paid thereon. The Corporation shall furnish, an a timely basis,
all required information,returns and other data necessary to allow the Grantee
to file his tax return in a timely manner.
16. Dilution. Nothing contained in this Plan shall be construed to
--------
limit in any way any increase or other change in either the number of authorized
shares or issued shares. Any change in either the number of authorized shares or
issued shares shall be at the sale discretion of the Board. The Board shall also
have sole discretion to issue additional shares or do any other act or thing
necessary or proper to avoid dilution of the stock interests of Corporation
shareholders.
17. Shareholder Approval. The Grantee understands and agrees that the
--------------------
Agreement is subject to approval and ratification by a majority of the
Corporation's stockholders at the Annual Meeting of the Shareholders or a
Special Meeting called for the approval of the Agreement.
18. Issuance of New Certificates. Upon the termination of the
-------------------------------
Agreement, each Grantee shall surrender to the Corporation every certificate of
stock then owned by him, and the Corporation, in lieu thereof, shall issue to
each Employee new certificates for a number of shares, equal to the number
surrendered without the legend set forth in Section 14,
19. Non-Waiver. The waiver by either party of a breach of any provision
----------
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by the other party.
20. Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement, or the breach thereof, shall be settled by arbitration before a
single arbitrator. However, if the parties fail to agree upon an arbitrator,
then each shall select an arbitrator, the two arbitrators selected by the
parties shall select a third arbitrator, and all three arbitrators shall
arbitrate the controversy or claim. Arbitration shall be in Colorado Springs,
Color-ado, in accordance with the rules then in effect of the American
Arbitration Association, and judgment upon the award rendered by the arbitrator
or arbitrators, as the case may be,may be entered in any court having
jurisdiction thereof. The party against whom the arbitration decision is awarded
shall bear the costs of the arbitration, including the prevailing party's
reasonable attorney fees.
21. Controlling Law. This Agreement shall be subject to an construed in
---------------
accordance with the laws of the State of Colorado.
22. Binding Agreement. Subject to the limitations on the
-------------------
transferability of the Option contained herein, this Agreement shall be binding
upon and inure to the benefit of the beneficiaries, heirs, legal
representatives, successors and assigns of the parties hereto.
23. Entire Agreement, Amendment. This Agreement states the entire
-----------------------------
agreement and understanding between the parties and supersedes all prior
understandings and agreements. No change or modification of this Agreement shall
be valid unless in writing and signed by the parties hereto.
<PAGE>
24. Counterparts. This Agreement may be executed in any number of
------------
counterparts by signing any number of counterparts of execution pages hereof
with the same effect as if all parties to this Agreement had all signed the same
document All executed counterparts shall be construed together, and shall,
together with the text of this Agreement, constitute one and the same
instrument.
25. Construction of Language. The language used in this Agreement and
------------------------
all parts hereof shall be construed as a whole according to its fair meaning,
and neither strictly for nor against any party.
26. Captions and Headings. The section headings throughout this
-----------------------
Agreement are for convenience of reference only and shall in no way be deemed to
define, limit, or -add to the meaning of any provision hereof.
27. Regulatory Compliance. Grantees acknowledge that regulatory
-----------------------
agencies having jurisdiction over the Corporation or the Bank may impose
restrictions on the exercise of these Options or the share acquired by exercise
of the Options. Any right created under this Agreement shall be subject to any
regulatory restrictions and Corporation shall not be required to take any action
to obtain regulatory approval for the exercise of any rights tinder this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement in
duplicate, at Colorado Springs, Colorado, the day and year first above written.
"The Corporation"
SBT BANKSHARES, INC.
By: /s/Scott E. Pursley, Secretary By: /s/John G. Jackson, President
------------------------------ -----------------------------
Scott E. Pursley, Secretary John G. Jackson, President
"The Bank"
STATE BANK AND TRUST OF
COLORADO SPRINGS
By:/s/John G. Jackson, President
-----------------------------
John G. Jackson, President
<PAGE>
"Grantee"
John G. Jackson
Street Address
City and State
"Grantee"
Scott E. Pursley
Street Address
City and State
"Grantee"
Gary Markle
Street Address
City and State
"Grantee"
Bernard F. Carter
Street Address
City and State
"Grantee"
<PAGE>
Robert A. Cadigan
Street Address
City and State
Exhibit 4.14
SBT BANKSHARES, INC.
FIRST AMENDMENT
TO
NON-QUALIFIED STOCK OPTION AGREEMENT
This First Amendment to the Non-Qualified Stock Option Agreement (First
Amendment"), effective the 24th day of January, 1997, between SBT Bankshares,
Inc., a Colorado corporation (hereinafter called "the Corporation") and John G.
Jackson, Scott E. Pursley, Gary Markle, Bernard F. Caner, and Robert A. Cadigan
(hereinafter individually called the "Grantee" or collectively "Grantees").
WITNESSETH
WHEREAS, the Corporation entered into the Non-Qualified Stock Option
Agreement ("Agreement") with the Grantees on April 17, 1995;
WHEREAS, the Corporation and Grantees desire to amend the Agreement to
allow the Corporation to buy back the Options of the Grantees on the terms and
conditions set forth herein;
WHEREAS the terms utilized herein arc the terms defined in the
Agreement unless otherwise noted.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. Repurchase of Options. Section 6 of the Agreement is hereby amended
---------------------
by the addition of a new subsection (g) as follows
(g) Repurchase of Options. The Corporation, on its own
-----------------------
election, or at the request of a Grantee, may repurchase any
Option to which a Grantee is vested ("Repurchase") and which
Option has not been exercised pursuant to Section 8 of the
Agreement. The Notice of the Repurchase ("Notice") shall be
given to the other party pursuant to Section 8 of the
Agreement. Partial Repurchase of Options is not permitted by
this First Amendment. The Repurchase shall be accomplished
within sixty (60) days of the date of the Notice. The price
for the Repurchase ("Repurchase Price") shall be as
negotiated between the Company and the Grantee. The
Repurchase Price shall be paid in cash or other immediately
available funds. The Repurchase of any Option shall operate
as are lease by the Grantee of any of his rights under the
Agreement and shall operate as a termination of the
Agreement so that the Grantee has no future rights under the
Agreement.
<PAGE>
2. Repurchased Options. Section 6 of the Agreement is hereby amended by
-------------------
the addition of anew subsection (h) as follows:
(h) Repurchased Options. Any options repurchased pursuant to
-------------------
Section 6 (g) shall be preserved for future issuance in
accordance with Section 6(f) and shall not be retired on the
books of the Corporation.
3. Director Approval. The First Amendment is subject to approval and
------------------
modification by a majority of the Corporations board of directors ("Directors")
at a regular meeting of the Directors or a special meeting of the Directors
called for the approval of the First Amendment.
4. Ratification. The terms of this First Amendment shall control to the
------------
went it conflicts with the Agreement. All other terms of the Agreement not
hereby amended are ratified and affirmed.
5. Counterparts. This Agreement may be executed in any number of
------------
counterparts by signing any number of counterparts of execution pages hereof
with the same effect as if all parties to this Agreement had all signed the same
document. All executed counterparts shall be construed together, and shall,
together with the text of this Agreement, constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement in
duplicate, at Colorado Springs,Colorado, effective the day and year first above
written notwithstanding the actual date of signing.
"The Corporation"
SBT BANKSHARES, INC.
By: /s/Scott E. Pursley, Secretary By: /s/John G. Jackson, President
------------------------------ -----------------------------
Scott E. Pursley, Secretary John G. Jackson, President
"Grantee"
John G. Jackson
Street Address
City and State
<PAGE>
"Grantee"
Scott E. Pursley
Street Address
City and State
"Grantee"
Gary Markle
Street Address
City and State
"Grantee"
Bernard F. Carter
Street Address
City and State
"Grantee"
Robert A. Cadigan
Street Address
City and State
Exhibit 4.15
THE COMMERCE BANCORPORATION
1995 RESTATED INCENTIVE COMPENSATION PLAN
SECTION 1. PURPOSE
The purpose of The Commerce Bancorporation 1995 Incentive Compensation
Plan (the "Plan") is to enhance the long-term profitability and shareholder
value of The Commerce Bancorporation, a Washington corporation (the "Company"),
by offering incentives and rewards to those employees, directors, officers,
consultants, agents, advisors and independent contractors of the Company and its
Subsidiaries (as defined in Section 2 below) who are key to the Company's growth
and success, and to encourage them to remain in the service of the Company and
its Subsidiaries and to acquire and maintain stock ownership in the Company.
SECTION 2.DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set
forth below:
2.1 Award
"Award" means an award or grant made to a Participant pursuant to the
Plan, including, without limitation, awards or grants of Options, Stock
Appreciation Rights, Stock Awards or any combination of the foregoing.
2.2 Board
"Board" means the Board of Directors of the Company.
2.3 Cause
"Cause" means dishonesty, fraud, misconduct, unauthorized use or
disclosure of confidential information or trade secrets, or conviction or
confession of a crime punishable by law (except minor violations), in each case
as determined by the Plan Administrator, whose determination shall be conclusive
and binding.
2.4 Code
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
2.5 Common Stock
"Common Stock" means the common stock, par value $2.50 per share, of
the Company.
<PAGE>
2.6 Corporate Transaction
"Corporate Transaction" means any of the following events:
(a) Approval by the holders of the Common Stock of any merger
or consolidation of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Common Stock are
converted into cash, securities or other property, other than a merger of the
Company in which the holders of the Common Stock immediately prior to the merger
have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger;
(b) Approval by the holders of the Common Stock of any sale,
lease, exchange or other transfer in one transaction or a series of related
transactions of all or substantially all of the Company's assets other than a
transfer of the Company's assets to a majority-owned subsidiary (as the term
"subsidiary" is defined in Section 8.3 of the Plan) of the Company; or
(c) Approval by the holders of the Common Stock of any plan or
proposal for the liquidation or dissolution of the Company.
2.7 Disability
"Disability" means "disability" as that term is defined for purposes of
the Company's group long-term disability plan or other similar successor plan
applicable to salaried employees.
2.8 Early Retirement
"Early Retirement" means retirement as that term is defined by the Plan
Administrator from time to time for purposes of the Plan.
2.9 Exchange Act
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.10 Fair Market Value
"Fair Market Value" shall be as established in good faith by the Plan
Administrator or (i) if the Common Stock is listed on the Nasdaq National
Market, the closing price for the Common Stock as reported by the Nasdaq
National Market on the trading day or (ii) if the Common Stock is listed on the
New York Stock Exchange, the mean of the high and low per share trading prices
for the Common Stock as reported in The Wall Street Journal for the New York
Stock Exchange--Composite Transactions (or similar successor consolidated
transactions reports), for a single trading day.
2.11 Good Reason
"Good Reason" means the occurrence of any of the following events or
conditions:
<PAGE>
(a) a change in the Holder's status, title, position or
responsibilities (including reporting responsibilities) that, in the Holder's
reasonable judgment, represents a substantial reduction of the status, title,
position or responsibilities as in effect immediately prior thereto; the
assignment to the Holder of any duties or responsibilities that, in the Holder's
reasonable judgment, are inconsistent with such status, title, position or
responsibilities; or any removal of the Holder from or failure to reappoint or
reelect the Holder to any of such positions, except in connection with the
termination of the Holder's employment for Cause, for Disability or as a result
of his or her death, or by the Holder other than for Good Reason;
(b) a reduction in the Holder's annual base salary;
(c) the Company's requiring the Holder (without the Holder's
consent) to be based at any place outside a 35-mile radius of his or her place
of employment prior to a Corporate Transaction, except for reasonably required
travel on the Company's business that is not materially greater than such travel
requirements prior to the Corporate Transaction;
(d) the Company's failure to (i) continue in effect any
material compensation or benefit plan (or the substantial equivalent thereof) in
which the Holder was participating at the time of a Corporate Transaction,
including, but not limited to, the Plan, or (ii) provide the Holder with
compensation and benefits at least equal (in terms of benefit levels and/or
reward opportunities) to those provided for under each employee benefit plan,
program and practice as in effect immediately prior to the Corporate Transaction
(or as in effect following the Corporate Transaction, if greater);
(e) any material breach by the Company of any provision of
the Plan; or
(f) any purported termination of the Holder's employment or
service for Cause by the Company that does not comply with the terms of the
Plan.
2.12 Grant Date
"Grant Date" means the date designated in a resolution of the Plan
Administrator as the date an Award is granted. If the Plan Administrator does
not designate a Grant Date in the resolution, the Grant Date shall be the date
the Plan Administrator adopted the resolution.
2.13 Holder
"Holder" means the Participant to whom an Award is granted, or the
personal representative of a Holder who has died.
2.14 Incentive Stock Option
"Incentive Stock Option" means an option to purchase Common Stock
granted under Section 7 of the Plan with the intention that it qualify as an
"incentive stock option" as that term is defined in Section 422 of the Code.
<PAGE>
2.15 Nonqualified Stock Option
"Nonqualified Stock Option" means an option to purchase Common Stock
granted under Section 7 of the Plan other than an Incentive Stock Option.
2.16 Option
"Option" means the right to purchase Common Stock granted under Section
7 of the Plan.
2.17 Participant
"Participant" means an individual who is a Holder of an Award or, as
the context may require, any employee, director, officer, consultant, agent,
advisor or independent contractor of the Company or a Subsidiary who has been
designated by the Plan Administrator as eligible to participate in the Plan.
2.18 Plan Administrator
"Plan Administrator" means the Board or any committee of the Board
designated to administer the Plan under Section 3.1 of the Plan.
2.19 Restricted Stock
"Restricted Stock" means shares of Common Stock granted under Section
10 of the Plan the rights of ownership of which are subject to restrictions
prescribed by the Plan Administrator.
2.20 Retirement
"Retirement" means retirement as of the individual's normal retirement
date under the Company's Defined Benefit Retirement Plan or other similar
successor plan applicable to salaried employees.
2.21 Stock Appreciation Right
"Stock Appreciation Right" means an Award granted under Section 9 of
the Plan.
2.22 Stock Award
"Stock Award" means an Award granted under Section 10 of the Plan.
2.23 Subsidiary
"Subsidiary," except as expressly provided otherwise, means any entity
that is directly or indirectly controlled by the Company or in which the Company
has a significant ownership interest, as determined by the Plan Administrator,
and any entity that may become a direct or indirect parent of the Company.
<PAGE>
2.24 Window Period
"Window Period" means a period of 10 days on which there is trading in
the Common Stock on the Nasdaq National Market or New York Stock Exchange,
beginning with the third trading day after disclosure by the Company to the
public of its earnings for the fiscal period just ended and ending with the
twelfth such day.
2.25 Window Period Fair Market Value
"Window Period Fair Market Value" means the highest Fair Market Value
during a Window Period.
SECTION 3. ADMINISTRATION
3.1 Plan Administrator
The Plan shall be administered by the Board or a committee or
committees (which term includes subcommittees) appointed by, and consisting of
two or more members of, the Board. The Board may delegate the responsibility for
administering the Plan with respect to designated classes of eligible
Participants to different committees, subject to such limitations as the Board
deems appropriate. Committee members shall serve for such term as the Board may
determine, subject to removal by the Board at any time. The composition of any
committee responsible for administering the Plan with respect to officers and
directors of the Company who are subject to Section 16 of the Exchange Act with
respect to securities of the Company shall comply with the requirements of Rule
16b-3 under Section 16(b) of the Exchange Act.
3.2 Administration and Interpretation by the Plan Administrator
Except for the terms and conditions explicitly set forth in the Plan,
the Plan Administrator shall have exclusive authority, in its discretion, to
determine all matters relating to Awards under the Plan, including the selection
of individuals to be granted Awards, the type of Awards, the number of shares of
Common Stock subject to an Award, all terms, conditions, restrictions and
limitations, if any, of an Award and the terms of any instrument that evidences
the Award. The Plan Administrator shall also have exclusive authority to
interpret the Plan and may from time to time adopt, and change, rules and
regulations of general application for the Plan's administration. The Plan
Administrator's interpretation of the Plan and its rules and regulations, and
all actions taken and determinations made by the Plan Administrator pursuant to
the Plan, shall be conclusive and binding on all parties involved or affected.
The Plan Administrator may delegate administrative duties to such of the
Company's officers as it so determines.
SECTION 4. STOCK SUBJECT TO THE PLAN
4.1 Authorized Number of Shares
Subject to adjustment from time to time as provided in Section 13.1 of
the Plan, a
<PAGE>
maximum of 680,000 shares of Common Stock shall be available for issuance under
the Plan. Shares issued under the Plan shall be drawn from authorized and
unissued shares.
4.2 Reuse of Shares
Any shares of Common Stock that have been made subject to an Award that
cease to be subject to the Award (other than by reason of exercise or payment of
the Award to the extent it is exercised for or settled in shares), including,
without limitation, in connection with the cancellation of an Award and the
grant of a replacement Award, shall again be available for issuance in
connection with future grants of Awards under the Plan. Shares that are subject
to tandem Awards shall be counted only once.
SECTION 5. ELIGIBILITY
Awards may be granted under the Plan to those officers, directors and
key employees of the Company and its Subsidiaries as the Plan Administrator from
time to time selects. Awards may also be made to consultants, agents, advisors
and independent contractors who provide services to the Company and its
Subsidiaries.
SECTION 6. AWARDS
6.1 Form and Grant of Awards
The Plan Administrator shall have the authority, in its sole
discretion, to determine the type or types of Awards to be made under the Plan.
Such Awards may include, but are not limited to, Incentive Stock Options,
Nonqualified Stock Options, Stock Appreciation Rights and Stock Awards. Awards
may be granted singly, in combination or in tandem so that the settlement or
payment of one automatically reduces or cancels the other. Awards may also be
made in combination or in tandem with, in replacement of, as alternatives to, or
as the payment form for, grants or rights under any other employee or
compensation plan of the Company.
6.2 Acquired Company Awards
Notwithstanding anything in the Plan to the contrary, the Plan
Administrator may grant Awards under the Plan in substitution for awards issued
under other plans, or assume under the Plan awards issued under other plans, if
the other plans are or were plans of other entities ("Acquired Entities") (or
the parent of the Acquired Entity) and the new Award is substituted, or the old
award is assumed, by reason of a merger, consolidation, acquisition of property
or of stock, reorganization or liquidation (the "Acquisition Transaction"). In
the event that a written agreement pursuant to which the Acquisition Transaction
is completed is approved by the Board and said agreement sets forth the terms
and conditions of the substitution for or assumption of outstanding awards of
the Acquired Entity, said terms and conditions shall be deemed to be the action
of the Plan Administrator without any further action by the Plan Administrator,
except as may be required for compliance with Rule 16b-3 under the Exchange Act,
and the persons holding such Awards shall be deemed to be Participants and
Holders.
<PAGE>
SECTION 7. AWARDS OF OPTIONS
7.1 Grant of Options
The Plan Administrator is authorized under the Plan, in its sole
discretion, to issue Options as Incentive Stock Options or as Nonqualified Stock
Options, which shall be appropriately designated.
7.2 Option Exercise Price
The exercise price for shares purchased under an Option shall be as
determined by the Plan Administrator, but shall not be less than 100% of the
Fair Market Value of the Common Stock on the Grant Date with respect to
Incentive Stock Options.
7.3 Term of Options
The term of each Option shall be as established by the Plan
Administrator or, if not so established, shall be 10 years from the Grant Date.
7.4 Exercise of Options
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option the time at which or the installments in which the
Option shall become exercisable, which provisions may be waived or modified by
the Plan Administrator at any time. If not so established in the instrument
evidencing the Option, the Option will become exercisable according to the
following schedule, which may be waived or modified by the Plan Administrator at
any time:
<TABLE>
<CAPTION>
Period of Holder's Continuous Employment
or Service With the Company or Its
Subsidiaries From the Option Grant Date Percent of Total Option That Is Exercisable
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
After 1 year 20%
After 2 years 40%
After 3 years 60%
After 4 years 80%
After 5 years 100%
</TABLE>
To the extent that the right to purchase shares has accrued thereunder,
an Option may be exercised from time to time by written notice to the Company,
in accordance with procedures established by the Plan Administrator, setting
forth the number of shares with respect to which the Option is being exercised
and accompanied by payment in full as described in Section 7.5 of the Plan. The
Plan Administrator may determine that an Option may not be exercised as to less
than 100 shares at any one time (or the lesser number of remaining shares
covered by the Option).
<PAGE>
7.5 Payment of Exercise Price
The exercise price for shares purchased under an Option shall be paid
in full to the Company by delivery of consideration equal to the product of the
Option exercise price and the number of shares purchased. Such consideration
must be paid in cash, except that the Plan Administrator may, either at the time
the Option is granted or at any time before it is exercised and subject to such
limitations as the Plan Administrator may determine, authorize payment in cash
and/or one or more of the following alternative forms: (i) Common Stock already
owned by the Holder for at least six months (or any shorter period necessary to
avoid a charge to the Company's earnings for financial reporting purposes)
having a Fair Market Value on the day prior to the exercise date equal to the
aggregate Option exercise price; (ii) a promissory note authorized pursuant to
Section 11 of the Plan; (iii) if the Common Stock is publicly traded, delivery
of a properly executed exercise notice, together with irrevocable instructions,
to (a) a brokerage firm designated by the Company to deliver promptly to the
Company the aggregate amount of sale or loan proceeds to pay the Option exercise
price and any withholding tax obligations that may arise in connection with the
exercise and (b) the Company to deliver the certificates for such purchased
shares directly to such brokerage firm, all in accordance with the regulations
of the Federal Reserve Board; or (iv) such other consideration as the Plan
Administrator may permit.
7.6 Post-Termination Exercises
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option whether the Option will continue to be exercisable, and
the terms and conditions of such exercise, if a Holder ceases to be employed by,
or to provide services to, the Company or its Subsidiaries, which provisions may
be waived or modified by the Plan Administrator at any time. If not so
established in the instrument evidencing the Option, the Option will be
exercisable according to the following terms and conditions, which may be waived
or modified by the Plan Administrator at any time. In case of termination of the
Holder's employment or services other than by reason of death or Cause, the
Option shall be exercisable, to the extent of the number of shares purchasable
by the Holder at the date of such termination, only: (i) within three years if
the termination of the Holder's employment or services are coincident with
Retirement, Early Retirement at the Company's request or Disability or (ii)
within three months after the date the Holder ceases to be an employee,
director, officer, consultant, agent, advisor or independent contractor of the
Company or a Subsidiary if termination of the Holder's employment or services is
for any reason other than Retirement, Early Retirement at the Company's request
or Disability, but in no event later than the remaining term of the Option. Any
Option exercisable at the time of the Holder's death may be exercised, to the
extent of the number of shares purchasable by the Holder at the date of the
Holder's death, by the personal representative of the Holder's estate entitled
thereto at any time or from time to time within one year after the date of
death, but in no event later than the remaining term of the Option. In case of
termination of the Holder's employment or services for Cause, the Option shall
automatically terminate upon first notification to the Holder of such
termination, unless the Plan Administrator
<PAGE>
determines otherwise. If a Holder's employment or services with the Company are
suspended pending an investigation of whether the Holder shall be terminated for
Cause, all the Holder's rights under any Option likewise shall be suspended
during the period of investigation. A transfer of employment or services between
or among the Company and its Subsidiaries shall not be considered a termination
of employment or services. Unless the Plan Administrator determines otherwise, a
leave of absence approved in accordance with Company procedures shall not be
considered a termination of employment or services, except that with respect to
Incentive Stock Options such leave of absence shall be subject to any
requirements of Section 422 of the Code.
SECTION 8. INCENTIVE STOCK OPTION LIMITATIONS
To the extent required by Section 422 of the Code, Incentive Stock
Options shall be subject to the following additional terms and conditions:
8.1 Dollar Limitation
To the extent the aggregate Fair Market Value (determined as of the
Grant Date) of Common Stock with respect to which Incentive Stock Options are
exercisable for the first time during any calendar year (under the Plan and all
other stock option plans of the Company) exceeds $100,000, such portion in
excess of $100,000 shall be treated as a Nonqualified Stock Option. In the event
the Participant holds two or more such Options that become exercisable for the
first time in the same calendar year, such limitation shall be applied on the
basis of the order in which such Options are granted.
8.2 10% Shareholders
If a Participant owns 10% or more of the total voting power of all
classes of the Company's stock, then the exercise price per share of an
Incentive Stock Option shall not be less than 110% of the Fair Market Value of
the Common Stock on the Grant Date and the Option term shall not exceed five
years.
8.3 Eligible Employees
Individuals who are not employees of the Company or one of its parent
corporations or subsidiary corporations may not be granted Incentive Stock
Options. For purposes of this Section 8.3 of the Plan, "parent corporation" and
"subsidiary corporation" shall have the meanings attributed to those terms for
purposes of Section 422 of the Code.
<PAGE>
8.4 Term
The term of an Incentive Stock Option shall not exceed 10 years.
8.5 Exercisability
An Option designated as an Incentive Stock Option must be exercised
within three months after termination of employment for reasons other than death
to qualify for Incentive Stock Option tax treatment, except that in the case of
termination of employment due to Disability, such Option must be exercised
within one year after such termination.
8.6 Taxation of Incentive Stock Option
In order to obtain certain tax benefits afforded to Incentive Stock
Options under Section 422 of the Code, the Participant must hold the shares
issued upon the exercise of an Incentive Stock Option for two years after the
date of grant of the Incentive Stock Option and one year from the date of
exercise. A Participant may be subject to the alternative minimum tax at the
time of exercise of an Incentive Stock Option. The Committee may require a
Participant to give the Company prompt notice of any disposition of shares
acquired by the exercise of an Incentive Stock Option prior to the expiration of
such holding periods.
SECTION 9. STOCK APPRECIATION RIGHTS
9.1 Grant of Stock Appreciation Rights
The Plan Administrator may grant a Stock Appreciation Right separately
or in tandem with a related Option.
9.2 Tandem Stock Appreciation Rights
A Stock Appreciation Right granted in tandem with a related Option will
give the Holder the right to surrender to the Company all or a portion of the
related Option and to receive an appreciation distribution (in shares of Common
Stock or cash or any combination of shares and cash, as the Plan Administrator
shall determine at any time) in an amount equal to the excess of the Fair Market
Value for the Window Period during which the Stock Appreciation Right is
exercised over the exercise price per share of the right, which shall be the
same as the exercise price of the related Option, except that if the right is
exercised during a Window Period, the
<PAGE>
amount will be equal to the excess of the Window Period Fair Market Value for
the Window Period during which the Stock Appreciation Right is exercised over
the exercise price per share of the right. A tandem Stock Appreciation Right
will have the same other terms and provisions as the related Option. Upon and to
the extent a tandem Stock Appreciation Right is exercised, the related Option
will terminate.
9.3 Stand-Alone Stock Appreciation Rights
A Stock Appreciation Right granted separately and not in tandem with an
Option will give the Holder the right to receive an appreciation distribution in
an amount equal to the excess of the Fair Market Value for the date the Stock
Appreciation Right is exercised over the exercise price per share of the right,
except that if the right is exercised during a Window Period, the amount will be
equal to the excess of the Window Period Fair Market Value for the Window Period
during which the right is exercised over the exercise price per share of the
right. A stand-alone Stock Appreciation Right will have such terms as the Plan
Administrator may determine, except that the exercise price per share of the
right must be at least equal to 85% of the Fair Market Value on the Grant Date
and the term of the right, if not otherwise established by the Plan
Administrator, shall be 10 years from the Grant Date.
9.4 Exercise of Stock Appreciation Rights
Unless otherwise provided by the Plan Administrator in the instrument
that evidences the Stock Appreciation Right, the provisions of Section 7.6 of
the Plan relating to the termination of a Holder's employment or services shall
apply equally, to the extent applicable, to the Holder of a Stock Appreciation
Right. Stock Appreciation Rights held by Participants who are subject to Section
16 of the Exchange Act may be exercised solely in accordance with the
requirements for compliance with Rule 16b-3 under the Exchange Act.
SECTION 10. STOCK AWARDS
10.1 Grant of Stock Awards
The Plan Administrator is authorized to make Awards of Common Stock to
Participants on such terms and conditions and subject to such restrictions, if
any (whether based on performance standards, periods of service or otherwise),
as the Plan Administrator shall determine, which terms, conditions and
restrictions shall be set forth in the instrument evidencing the Award. The
terms, conditions and restrictions that the Plan Administrator shall have the
power to determine shall include, without limitation, the manner in which shares
subject to Stock Awards are held during the periods they are subject to
restrictions and the circumstances under which forfeiture of Restricted Stock
shall occur by reason of termination of the Holder's services.
<PAGE>
10.2 Issuance of Shares
Upon the satisfaction of any terms, conditions and restrictions
prescribed in respect to a Stock Award, or upon the Holder's release from any
terms, conditions and restrictions of a Stock Award, as determined by the Plan
Administrator, the Company shall deliver, as soon as practicable, to the Holder
or, in the case of the Holder's death, to the personal representative of the
Holder's estate or as the appropriate court directs, a stock certificate for the
appropriate number of shares of Common Stock.
10.3 Waiver of Restrictions
Notwithstanding any other provisions of the Plan, the Plan
Administrator may, in its sole discretion, waive the forfeiture period and any
other terms, conditions or restrictions on any Restricted Stock under such
circumstances and subject to such terms and conditions as the Plan Administrator
shall deem appropriate.
SECTION 11. LOANS, LOAN GUARANTEES AND INSTALLMENT PAYMENTS
To assist a Holder (including a Holder who is an officer or director of
the Company) in acquiring shares of Common Stock pursuant to an Award granted
under the Plan, the Plan Administrator may authorize, either at the Grant Date
or at any time before the acquisition of Common Stock pursuant to the Award, (i)
the extension of a loan to the Holder by the Company, (ii) the payment by the
Holder of the purchase price, if any, of the Common Stock in installments, or
(iii) the guarantee by the Company of a loan obtained by the grantee from a
third party. The terms of any loans, installment payments or guarantees,
including the interest rate and terms of repayment, will be subject to the Plan
Administrator's discretion. Loans, installment payments and guarantees may be
granted with or without security. The maximum credit available is the purchase
price, if any, of the Common Stock acquired plus the maximum federal and state
income and employment tax liability that may be incurred in connection with the
acquisition.
SECTION 12. ASSIGNABILITY
No Option or Stock Appreciation Right granted under the Plan may be
assigned or transferred by the Holder other than by will or by the laws of
descent and distribution, and during the Holder's lifetime, such Awards may be
exercised only by the Holder. Notwithstanding the foregoing, and to the extent
permitted by Rule 16b-3 under the Exchange
<PAGE>
Act and Section 422 of the Code, the Plan Administrator, in its sole discretion,
may permit such assignment, transfer and exercisability and may permit a Holder
of such Awards to designate a beneficiary who may exercise the Award or receive
compensation under the Award after the Holder's death.
SECTION 13. ADJUSTMENTS
13.1 Adjustment of Shares
In the event that at any time or from time to time a stock dividend,
stock split, spin-off, combination or exchange of shares, recapitalization,
merger, consolidation, distribution to shareholders other than a normal cash
dividend, or other change in the Company's corporate or capital structure
results in (i) the outstanding shares, or any securities exchanged therefor or
received in their place, being exchanged for a different number or class of
securities of the Company or of any other corporation or (ii) new, different or
additional securities of the Company or of any other corporation being received
by the holders of shares of Common Stock of the Company, then the Plan
Administrator, in its sole discretion, shall make such equitable adjustments as
it shall deem appropriate in the circumstances in (a) the maximum number of and
class of securities subject to the Plan as set forth in Section 4.1 of the Plan
and (b) the number and class of securities that are subject to any outstanding
Award and the per share price of such securities, without any change in the
aggregate price to be paid therefor. The determination by the Plan Administrator
as to the terms of any of the foregoing adjustments shall be conclusive and
binding.
13.2 Corporate Transaction
Except as otherwise provided in the instrument that evidences the
Award, in the event of any Corporate Transaction, each Option, Stock
Appreciation Right or Stock Award that is at the time outstanding shall
automatically accelerate so that each such Award shall, immediately prior to the
specified effective date for the Corporate Transaction, become 100% vested,
except that such acceleration will not occur if in the opinion of the Company's
accountants it would render unavailable "pooling of interest" accounting for a
Corporate Transaction that would otherwise qualify for such accounting
treatment. Such Award shall not so accelerate, however, if and to the extent:
(i) such Award is, in connection with the Corporate Transaction, either to be
assumed by the successor corporation or parent thereof or to be replaced with a
comparable award for the purchase of shares of the capital stock of the
successor corporation or its parent corporation, (ii) such Award is to be
replaced with a cash incentive program of the successor corporation that
preserves the spread existing at the time of the Corporate Transaction and
provides for subsequent payout in accordance with the same vesting schedule
applicable to such Award, or (iii) the acceleration of such Award is subject to
other limitations imposed by the instrument evidencing the Award. The
determination of Award comparability under clause (i) above shall be made by the
Plan Administrator, and its determination shall be conclusive and
<PAGE>
binding. All such Awards shall terminate and cease to remain outstanding
immediately following the consummation of the Corporate Transaction, except to
the extent assumed by the successor corporation or its parent corporation. Any
such Awards that are assumed or replaced in the Corporate Transaction and do not
otherwise accelerate at that time shall be accelerated in the event the Holder's
employment or services should subsequently terminate within two years following
such Corporate Transaction, unless such employment or services are terminated by
the Company for Cause or by the Holder voluntarily without Good Reason.
Notwithstanding the foregoing, no Incentive Stock Option shall become
exercisable pursuant to this Section 13.2 without the Holder's consent, if the
result would be to cause such Option not to be treated as an Incentive Stock
Option (whether by reason of the annual limitation described in Section 8.1 of
the Plan or otherwise).
13.3 Further Adjustment of Awards
Without limiting the preceding Section 13.2 of the Plan, the Plan
Administrator shall have the discretion, exercisable at any time before a sale,
merger, consolidation, reorganization, liquidation or change in control of the
Company, as defined by the Plan Administrator, to take such further action as it
determines to be necessary or advisable, and fair and equitable to Participants,
with respect to Awards. Such authorized action may include (but shall not be
limited to) establishing, amending or waiving the type, terms, conditions or
duration of, or restrictions on, Awards so as to provide for earlier, later,
extended or additional time for exercise, payment or settlement or lifting
restrictions, differing methods for calculating payments or settlements,
alternate forms and amounts of payments and settlements and other modifications,
and the Plan Administrator may take such actions with respect to all
Participants, to certain categories of Participants or only to individual
Participants. The Plan Administrator may take such actions before or after
granting Awards to which the action relates and before or after any public
announcement with respect to such sale, merger, consolidation, reorganization,
liquidation or change in control that is the reason for such action.
13.4 Limitations
The grant of Awards will in no way affect the Company's right to
adjust, reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
SECTION 14. WITHHOLDING OF TAXES
The Company may require the Holder to pay to the Company the amount of
any withholding taxes that the Company is required to withhold with respect to
the grant, exercise, payment or settlement of any Award. In such instances, the
Plan Administrator may, in its discretion and subject to the Plan and applicable
law, permit the Holder to satisfy withholding
<PAGE>
obligations, in whole or in part, by paying cash, by electing to have the
Company withhold shares of Common Stock or by transferring shares of Common
Stock to the Company, in such amounts as are equivalent to the Fair Market Value
of the withholding obligation.
SECTION 15. AMENDMENT AND TERMINATION OF PLAN
15.1 Amendment of Plan
The Plan may be amended by the shareholders of the Company. The Board
may also amend the Plan in such respects as it shall deem advisable; however, to
the extent required for compliance with Rule 16b-3 under the Exchange Act,
Section 422 of the Code or any applicable law or regulation, shareholder
approval will be required for any amendment that will (i) increase the total
number of shares as to which Options may be granted or which may be used in
payment of Stock Appreciation Rights under the Plan or that may be issued as
Restricted Stock, (ii) materially modify the class of persons eligible to
receive Awards, (iii) materially increase the benefits accruing to Participants
under the Plan, or (iv) otherwise require shareholder approval under any
applicable law or regulation.
15.2 Termination of Plan
The Company's shareholders or the Board may suspend or terminate the
Plan at any time. The Plan will have no fixed expiration date; provided,
however, that no Incentive Stock Options may be granted more than 10 years after
the Plan's effective date.
15.3 Consent of Holder
The amendment or termination of the Plan shall not, without the consent
of the Holder of any Award under the Plan, alter or impair any rights or
obligations under any Award theretofore granted under the Plan.
SECTION 16. GENERAL
16.1 Notification
The Plan Administrator shall promptly notify a Participant of an Award,
and a written grant shall promptly be executed and delivered by or on behalf of
the Company.
<PAGE>
16.2 Continued Employment or Services; Rights in Awards
Neither the Plan, participation in the Plan as a Participant nor any
action of the Plan Administrator taken under the Plan shall be construed as
giving any Participant or employee of the Company any right to be retained in
the employ of the Company or limit the Company's right to terminate the
employment or services of the Participant.
16.3 Registration; Certificates for Shares
The Company shall be under no obligation to any Participant to register
for offering or resale under the Securities Act of 1933, as amended, or register
or qualify under state securities laws, any shares of Common Stock, security or
interest in a security paid or issued under, or created by, the Plan. The
Company may issue certificates for shares with such legends and subject to such
restrictions on transfer and stop-transfer instructions as counsel for the
Company deems necessary or desirable for compliance by the Company with federal
and state securities laws.
16.4 No Rights as a Shareholder
No Option, or Stock Appreciation Right shall entitle the Holder to any
dividend (except to the extent provided in an Award of Dividend Equivalent
Rights), voting or other right of a shareholder unless and until the date of
issuance under the Plan of the shares that are the subject of such Awards, free
of all applicable restrictions.
16.5 Compliance With Laws and Regulations
It is the Company's intention that, so long as any of the Company's
equity securities are registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, the Plan shall comply in all respects with Rule 16b-3 under the
Exchange Act and, if any Plan provision is later found not to be in compliance
with such Rule, the provision shall be deemed null and void, and in all events
the Plan shall be construed in favor of its meeting the requirements of Rule
16b-3. Notwithstanding anything in the Plan to the contrary, the Board, in its
sole discretion, may bifurcate the Plan so as to restrict, limit or condition
the use of any provision of the Plan to Participants who are officers or
directors subject to Section 16 of the Exchange Act without so restricting,
limiting or conditioning the Plan with respect to other Participants.
Additionally, in interpreting and applying the provisions of the Plan, any
Option granted as an Incentive Stock Option pursuant to the Plan shall, to the
extent permitted by law, be construed as an "incentive stock option" within the
meaning of Section 422 of the Code.
<PAGE>
16.6 No Trust or Fund
The Plan is intended to constitute an "unfunded" plan. Nothing
contained herein shall require the Company to segregate any monies or other
property, or shares of Common Stock, or to create any trusts, or to make any
special deposits for any immediate or deferred amounts payable to any
Participant, and no Participant shall have any rights that are greater than
those of a general unsecured creditor of the Company.
16.7 Severability
If any provision of the Plan or any Award is determined to be invalid,
illegal or unenforceable in any jurisdiction, or as to any person, or would
disqualify the Plan or any Award under any law deemed applicable by the Plan
Administrator, such provision shall be construed or deemed amended to conform to
applicable laws, or, if it cannot be so construed or deemed amended without, in
the Plan Administrator's determination, materially altering the intent of the
Plan or the Award, such provision shall be stricken as to such jurisdiction,
person or Award, and the remainder of the Plan and any such Award shall remain
in full force and effect.
SECTION 17. EFFECTIVE DATE
The Plan's effective date is the date on which it is adopted by the
Board, so long as it is approved by the Company's shareholders at any time
within 12 months of such adoption or, if earlier, and to the extent required for
compliance with Rule 16b-3 under the Exchange Act, at the next annual meeting of
the Company's shareholders after adoption of the Plan by the Board.
Adopted by the Board on November 9, 1995. Section 4 amended by the
Board on January 17, 1996 to increase the number of shares available hereunder
to 680,000.
Approved by the Company's shareholders on April 17, 1996.
Exhibit 4.16
THE COMMERCE BANCORPORATION
1987 STOCK OPTION PLAN
SECTION 1. Purpose. The purpose of The Commerce Bancorporation 1987
-------
Stock Option Plan (this "Plan") is to provide a means whereby selected employees
and officers of The Commerce Bancorporation (the "Company") or of any parent or
subsidiary (as defined in subsection 5.5 and referred to hereinafter as "related
corporations") thereof, may be granted incentive stock options and/or
nonqualified stock options to purchase the Common Stock of the Company, in order
to attract and retain the services or advice of such employees and officers and
to provide added incentive to them by encouraging stock ownership in the
Company.
SECTION 2. Administration. This Plan shall be administered by the Board
--------------
of Directors of the Company (the "Board") or, in the event the Board shall
appoint and/or authorize a Personnel Committee to administer this Plan, by such
committee. The administrator of this Plan shall hereinafter be referred to as
the "Plan Administrator." The members of the Board (or the Personnel Committee)
who are not also employees of the Company shall not be eligible to receive
options under this Plan. The foregoing notwithstanding, in the event the Company
shall register any of its equity securities pursuant to Sections 12(b) or 12(g)
of the Securities Exchange Act of 1934, then the following provisions shall
replace the paragraph above. The administrator of this Plan shall be the Board,
a majority of which Board and a majority of which directors acting in the matter
are disinterested directors, or may be a committee consisting solely of not less
than three disinterested directors of the Company. The members of any committee
serving as Plan Administrator shall be appointed by the Board for such term as
the Board may determine. The Board may from time to time remove members from, or
add members to, the committee. Vacancies on the committee, however caused, may
be filled by the Board. If at any time an insufficient number of disinterested
directors is available to serve on such committee, interested directors may
serve on the committee; however, during this time, no options shall be granted
under this Plan to any director who is not also an employee of the Company.
For purposes of this Section, a disinterested director is a member of the Board
who (a) is not at the time he or she exercises discretion in administering this
Plan eligible and has not at any time within one (1) year prior thereto been
eligible for selection as a person to whom stock may be allocated or to whom
stock options or stock appreciation rights may be granted pursuant to this Plan
or any other plan of the Company or any related corporation entitling the
participants therein to acquire stock, stock options, or stock appreciation
rights of the Company or any related corporation or (b) otherwise meets the
definition of "disinterested person" as set forth in the rules and regulations
promulgated under Section 16(b) of the Securities Exchange Act of 1934.
<PAGE>
2.1 Procedures. The Board shall designate one of the members
----------
of the Plan Administrator as chairman. The Plan Administrator may hold meetings
at such times and places as it shall determine. The acts of a majority of the
members of the Plan Administrator present at meetings at which a quorum exists,
or acts reduced to or approved in writing by all Plan Administrator members,
shall be valid acts of the Plan Administrator.
2.2 Responsibilities. Except for the terms and conditions
----------------
explicitly set forth in this Plan, the Plan Administrator shall have the
authority, in its discretion, to determine all matters relating to the options
to be granted under this Plan, including selection of the individuals to be
granted options, the number of shares to be subject to each option, the exercise
price, and all other terms and conditions of the options. Grants under this Plan
need not be identical in any respect, even when made simultaneously. The
interpretation and construction by the Plan Administrator of any terms or
provisions of this Plan or any option issued hereunder, or of any rule or
regulation promulgated in connection herewith, shall be conclusive and binding
on all interested parties, so long as such interpretation and construction with
respect to incentive stock options corresponds to the requirements of Internal
Revenue Code of 1986, as amended (the "Code") Section 422A, the regulations
thereunder, and any amendments thereto.
SECTION 3. Stock Subject to this Plan. The stock subject to this Plan
---------------------------
shall be the Company's Common Stock, (the "Common Stock"), presently authorized
but unissued or subsequently acquired by the Company. Subject to adjustment as
provided in Section 7 hereof, the aggregate amount of Common Stock to be
delivered upon the exercise of all options granted under this Plan shall not
exceed Five Hundred Fifty Thousand (550,000) shares as such Common Stock was
constituted on the effective date of this Plan. If any option granted under this
Plan shall expire or terminate for any reason without having been exercised in
full, the unpurchased shares subject thereto shall thereupon again be available
for purposes of this Plan.
SECTION 4. Eligibility. Stock options may be granted only to any
-----------
individual who, at the time the option is granted, is an employee of the Company
or any related corporation. Any individual to whom an option is granted under
this Plan shall be referred to hereafter as "Optionee".
SECTION 5. Terms and Conditions of Options. Options granted under this
-------------------------------
Plan shall be evidenced by written agreements which shall contain such terms,
conditions, limitations and restrictions as the Plan Administrator shall deem
advisable and which are not inconsistent with this Plan. Notwithstanding the
foregoing, options shall include or incorporate by reference the following terms
and conditions:
<PAGE>
5.1 Number of Shares and Price. The maximum number of shares
--------------------------
that may be purchased pursuant to the exercise of each option and the price per
share at which such option is exercisable (the "exercise price") shall be as
established by the Plan Administrator, provided that, the Plan Administrator
shall act in good faith to establish the exercise price which shall be not less
than the fair market value per share of the Common Stock at the time the option
is granted and also provided that, with respect to incentive stock options
granted to greater than ten percent (10%) shareholders, the exercise price shall
be as required by Section 6.
5.2 Term and Maturity. Subject to the restrictions contained
-----------------
in Section 6 with respect to granting incentive stock options to greater than
ten percent (10%) shareholders, the term of each incentive stock option granted
under this Plan shall be as established by the Plan Administrator and, if not so
established, shall be ten (10) years from the date it is granted but in no event
shall the term of any incentive stock option exceed ten (10) years. The term of
each nonqualified stock option shall be as established by the Plan Administrator
and, if not so established, shall be ten (10) years and one (1) week from the
date it is granted but in no event shall the term of any nonqualified stock
option exceed ten (10) years and one (1) week. To insure that the Company will
achieve the purpose and receive the benefits contemplated in this Plan, any
option granted to any person hereunder shall, unless the condition of this
sentence is waived or modified in the agreement evidencing the option or by
resolution adopted by the Plan Administrator, be exercisable according to the
following schedule:
Period of Optionee's
Continuous Relationship
with the Company from the Portion of Total Option
Date the Option is Granted Which is exercisable
-------------------------- --------------------
after 1 year 20%
after 2 years 40%
after 3 years 60%
after 4 years 80%
after 5 years 100%
5.3 Exercise. Subject to the vesting schedule described in
--------
subsection 5.2 above, each option may be exercised in whole or in part;
provided, however, that no fewer than one hundred (100) shares (or the remaining
shares then purchasable under the option, if less than one hundred (100) shares)
may be purchased upon any exercise of option rights hereunder and that only
whole shares will be issued pursuant to the exercise of any option. During an
Optionee's lifetime, any incentive stock options granted under this Plan are
personal to him or her and are exercisable solely by such Optionee. Options
shall be exercised by delivery to the Company of notice of the number of shares
with respect to which the option is exercised,
<PAGE>
together with payment of the exercise price, in cash, bank certified or
cashier's check, or personal check (unless the Plan Administrator in a
particular case determines otherwise), for the Common Stock being purchased. To
the extent permitted by applicable laws and regulations (including, but not
limited to, federal tax and securities laws, regulations and state corporate
law), and, unless the Plan Administrator determines otherwise, an option may be
exercised by delivery of shares of the capital stock of the Company held by the
Optionee having a fair market value equal to the exercise price, such fair
market value to be determined in good faith by the Plan Administrator.
5.4 Nontransferability of Option. Options granted under this
----------------------------
Plan and the rights and privileges conferred hereby may not be transferred,
assigned, pledged, or hypothecated in any manner (whether by operation of law or
otherwise) other than by will or by the applicable laws of descent and
distribution, and shall not be subject to execution, attachment, or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of any option under this Plan or of any right or privilege conferred
hereby, contrary to the Code or to the provisions of this Plan, or upon the sale
or levy or any attachment or similar process upon the rights and privileges
conferred hereby, such option shall thereupon terminate and become null and
void.
5.5 Termination of Relationship. If the Optionee's
-------------------------------
relationship with the Company or any related corporation ceases for any reason
other than death or total disability, and unless by its terms the Option sooner
terminates and expires, then the Optionee may exercise, for a three (3) month
period, that portion of his or her option which is exercisable at the time of
such cessation, but the Optionee's option shall terminate at the end of the
three (3) month period following such cessation as to all shares for which it
has not theretofore been exercised, unless, in the case of a nonqualified stock
option, such provision is waived in the agreement evidencing the option or by
resolution adopted by the Plan Administrator within thirty (30) days of such
cessation. If, in the case of an incentive stock option, an Optionee's
relationship with the Company changes (e.g., from employee to a nonemployee,
such as a consultant), such change shall constitute a termination of an
Optionee's employment with the Company and the Optionee's incentive stock option
shall terminate in accordance with this subsection.
If an Optionee's relationship with the Company or any related
corporation ceases because of a total disability, the Optionee's option shall
not terminate or, in the case of an incentive stock option, cease to be treated
as an incentive stock option until the end of the twelve (12) month period
following such cessation (unless by its terms it sooner terminates and expires).
As used in this Plan, the term "total disability" refers to mental or physical
impairment of the Optionee which is expected to result in death or which has
lasted or is expected to last for a continuous period of twelve (12) months or
more and which causes the Optionee to be unable, in the opinion of the Company
and one independent physician, to perform his or her duties as an employee or
officer of the Company and to be engaged in any substantial gainful activity.
Total disability shall be deemed to have occurred on the first day after the
Company and the one
<PAGE>
independent physician have furnished their opinion of total disability to the
Plan Administrator. For purposes of this subsection 5.5, a transfer of
employment or relationship between or among the Company and/or any related
corporation shall not be deemed to constitute a cessation of employment or
relationship with the Company or any of its related corporations. For purposes
of this subsection 5.5 with respect to incentive stock options, employment shall
be deemed to continue while the Optionee is on military leave, sick leave or
other bona fide leave of absence (as determined by the Plan Administrator). The
foregoing notwithstanding, employment shall not be deemed to continue beyond the
first ninety (90) days of such leave, unless the Optionee's reemployment rights
are guaranteed by statute or by contract.
As used herein, the term "related corporation", when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company, if stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock of each of the corporations other than the Company is owned by one of the
other corporations in such chain. When referring to a parent corporation, the
term "related corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if, at the time of the granting of the
option, each of the corporations other than the Company owns stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
5.6 Death of Optionee. If an Optionee dies while he or she has
-----------------
a relationship with the Company or any related corporation as an employee or
officer, or within the three (3) month period (or twelve (12) month period in
the case of totally disabled Optionees) following cessation of such
relationship, any option held by such Optionee may, to the extent that the
Optionee would have been entitled to exercise such option, be exercised within
one (1) year after his or her death by the personal representative of his or her
estate or by the person or persons to whom the Optionee's rights under the
option shall pass by will or by the applicable laws of descent and distribution.
5.7 Status of Shareholder. Neither the Optionee nor any person
---------------------
or persons to whom the Optionee's rights and privileges under the option may
pass shall be, or have any of the rights or privileges of, a shareholder of the
Company with respect to any of the shares issuable upon the exercise of any
option granted under this Plan unless and until such option has been exercised.
5.8 Continuation of Employment. Nothing in this Plan or in any
--------------------------
option granted pursuant to this Plan shall confer upon any Optionee any right to
continue in the employ of the Company or of a related corporation, or to
interfere in any way with the right of the Company or of any such related
corporation to terminate his or her employment or other relationship with the
Company at any time.
<PAGE>
5.9 Modification and Amendment of Option. Subject to the
----------------------------------------
requirements of Code Section 422A with respect to incentive stock options and to
the terms and conditions and within the limitations of this Plan, the Plan
Administrator may modify or amend outstanding options granted under this Plan.
The Plan Administrator shall not, however, modify or amend any outstanding
incentive stock option so as to specify a lower exercise price for the option.
The modification or amendment of an outstanding option shall not, without the
consent of the option holder, alter, impair or diminish any of his or her rights
or any of the obligations of the Company under such option. Unless the Optionee
agrees otherwise, any changes or adjustments made to outstanding incentive stock
options granted under this Plan shall be made in such a manner so as not to
constitute a "modification" as defined in Section 425(h) of the Code and so as
not to cause any incentive stock option issued hereunder to fail to continue to
qualify as an incentive stock option as defined in Section 422A(b) of the Code.
5.10 Limitation on Value for Incentive Stock Options. As to
------------------------------------------------
all incentive stock options granted under the terms of this Plan, the aggregate
fair market value (determined at the time the incentive stock option is granted)
of the stock with respect to which incentive stock options are exercisable for
the first time by the Optionee during any calendar year (under this Plan and all
other incentive stock option plans of the Company, a related corporation or a
predecessor corporation) shall not exceed $100,000. Any option which exceeds the
annual limit shall not qualify as an incentive stock option.
5.11 Withholding Taxes. As a condition to the exercise of a
------------------
nonqualified stock option, the Optionee shall make such arrangements as the Plan
Administrator may require for the satisfaction of any federal, state or local
withholding tax obligations that may arise in connection with such exercise.
SECTION 6. Greater than Ten Percent Shareholders.
-------------------------------------
6.1 Exercise Price and Term of Incentive Stock Options. If
-----------------------------------------------------
incentive stock options are granted under this Plan to employees who own more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or any related corporation, the term of such incentive
stock options shall not exceed five (5) years and the exercise price shall be
not less than one hundred ten percent (110%) of the fair market value of the
Common Stock at the time the incentive stock option is granted. This provision
shall control notwithstanding any contrary terms contained in the Incentive
Stock Option Letter Agreement or any other document.
6.2 Attribution Rule. For purposes of subsection 6.1, in
-----------------
determining stock ownership, an employee shall be deemed to own the stock owned,
directly or indirectly, by or for his or her brothers, sisters, spouse,
ancestors and lineal descendants. Stock owned directly or indirectly, by or for
a corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its shareholders, partners or beneficiaries. If an
employee or a person
<PAGE>
related to the employee owns an unexercised option or warrant to purchase stock
of the Company, the stock subject to that portion of the option or warrant which
is unexercised shall not be counted in determining stock ownership. For purposes
of this Section, stock owned by an employee shall include all stock actually
issued and outstanding immediately before the grant of the incentive stock
option to the Optionee.
SECTION 7. Adjustments Upon Changes in Capitalization. The aggregate
-------------------------------------------
number and class of shares for which options may be granted under this Plan, the
number and class of shares covered by each outstanding option and the exercise
price per share thereof (but not the total price), and each such option, shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock of the Company resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend.
7.1 Effect of Liquidation or Reorganization.
---------------------------------------
7.1.1 Cash, Stock or Other Property for Stock.
---------------------------------------------
Except as provided in subsection 7.1.2, upon a merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation of
the Company, as a result of which the shareholders of the Company receive cash,
stock or other property in exchange for or in connection with their shares of
Common Stock, any option granted hereunder shall terminate, but the Optionee
shall have the right immediately prior to any such merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation to
exercise his or her option in whole or in part whether or not the vesting
requirements set forth in the option agreement have been satisfied.
7.1.2 Conversion of Options on Stock for Stock
---------------------------------------------
Exchange. If the shareholders of the Company receive capital stock of another
- --------
corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger, consolidation, acquisition of property or
stock, separation or reorganization, all options granted hereunder shall be
converted into options to purchase shares of Exchange Stock unless the Company
and the corporation issuing the Exchange Stock, in their sole discretion
determine that any or all such options granted hereunder shall not be converted
into options to purchase shares of Exchange Stock but instead shall terminate in
accordance with the provisions of subsection 7.1.1. The amount and price of
converted options shall be determined by adjusting the amount and price of the
options granted hereunder in the same proportion as used for determining the
number of shares of Exchange Stock the holders of the Common Stock receive in
such merger, consolidation, acquisition of property or stock, separation or
reorganization. The converted options shall be fully vested whether or not the
vesting requirements set forth in the option agreement have been satisfied.
7.2 Fractional Shares. In the event of any adjustment in the
------------------
number of shares covered by any option, any fractional shares resulting from
adjustment shall be disregarded and each such option shall cover only the number
of full shares resulting from such adjustment.
<PAGE>
7.3 Determination of Board to be Final. All Section 7
---------------------------------------
adjustments shall be made by the Board, and its determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive. Unless an Optionee agrees otherwise, any change or adjustment to an
incentive stock option shall be made in such a manner so as not to constitute a
"modification" as defined in Section 425(h) of the Code and so as not to cause
his or her incentive stock option issued hereunder to fail to continue to
qualify as an incentive stock option as defined in Section 422A(b) of the Code.
SECTION 8. Securities Regulation. Shares shall not be issued with
----------------------
respect to an option granted under this Plan unless the exercise of such option
and the issuance and delivery of such shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, any applicable
state securities laws, the Securities Act of 1933, as amended the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance, including the availability of an
exemption from registration for the issuance and sale of any shares hereunder.
Inability of the Company to obtain from any regulatory body having jurisdiction,
the authority deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any shares hereunder or the unavailability of an exemption
from registration for the issuance and sale of any shares hereunder shall
relieve the Company of any liability in respect of the nonissuance or sale of
such shares as to which such requisite authority shall not have been obtained.
As a condition to the exercise of an option, the Company may require
the Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any relevant provision of the
aforementioned laws. At the option of the Company, a stop-transfer order against
any shares of stock may be placed on the official stock books and records of the
Company, and a legend indicating that the stock may not be pledged, sold or
otherwise transferred unless an option of counsel is provided (concurred in by
counsel for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Plan Administrator may also require such
other action or agreement by the Optionees as may from time to time be necessary
to comply with the federal and state securities laws. THIS PROVISION SHALL NOT
OBLIGATE THE COMPANY TO UNDERTAKE REGISTRATION OF THE OPTIONS OR STOCK
HEREUNDER.
Should any of the Company's capital stock of the same class as the
stock subject to options granted hereunder be listed on a national securities
exchange, all stock issued hereunder if not previously listed on such exchange
shall authorized by that exchange for listing thereon prior to the issuance
thereof.
<PAGE>
SECTION 9. Amendment and Termination.
-------------------------
9.1 Board Action. The Board may at any time suspend, amend or terminate
------------
this Plan, provided that except as set forth in Section 7, the approval of the
holders of a majority of the Company's outstanding shares of voting capital
stock is necessary within twelve (12) months before or after the adoption by the
Board of any amendment which will:
(a) increase the number of shares which are to be reserved
for the issuance of options under this Plan;
(b) extend the term of incentive stock options beyond ten
(10) years;
(c) permit the granting of stock options to persons other than
those presently permitted to receive stock options under this Plan; or
(d) materially increase the benefits accruing to the
participants under this Plan.
9.2 Automatic Termination. Unless sooner terminated by the
----------------------
Board, this Plan shall terminate ten (10) years from the earlier of (a) the date
on which this Plan is adopted or (b) the date on which this Plan is approved by
the shareholders of the Company. No option may be granted after such
termination, or during any suspension of this Plan. The amendment or termination
of this Plan shall not, without the consent of the option holder, alter or
impair any rights or obligations under any option theretofore granted under this
Plan.
SECTION 10. Indemnification of Board and Plan Administrator. In
----------------------------------------------------
addition to all other rights of indemnification they may have as Directors of
the Company or as members of the body serving as the Plan Administrator, members
of the Board and Plan Administrator shall be indemnified by the Company for all
reasonable expenses and liabilities of any type and nature, including attorneys'
fees, incurred in connection with any action, suit or proceeding to which they
or any of them are a party by reason of, or in connection with, any stock option
granted hereunder, and against all amounts paid by them in settlement thereof
(if such settlement is approved by independent legal counsel selected by the
Company); provided, however, that if such member or members are adjudged liable
for willful misconduct, the indemnification provisions of this Section 10 shall
not apply to expenses which relate to matters involving such willful misconduct.
This indemnification shall apply only if such member or members notify the
Company of such action, suit or proceeding in writing, within fifteen (15) days
after institution of any such action, suit or proceeding, so that the Company
may have the opportunity to make appropriate arrangements to prosecute or defend
any such action.
<PAGE>
SECTION 11. Effectiveness of this Plan. This Plan shall become
-----------------------------
effective upon adoption by the Board so long as it is approved by the holders of
a majority of the Company's outstanding shares of voting capital stock at any
time within twelve (12) months before or after the adoption of this Plan.
(Adopted by the Board of Directors of The Commerce Bancorporation (formerly,
Alliance Bancorporation) October 23, 1987, amended by the Board on January 22,
1992, approved by the shareholders on April 15, 1992.
Exhibit 5.1
CALLISTER NEBEKER & McCULLOUGH
A Professional Corporation
Gateway Tower East Suite 900
10 East South Temple
Salt Lake City, Utah 84133
(801) 530-7300
3 December 1998
Zions Bancorporation
One South Main, Suite 1380
Salt Lake City, Utah 84111
Re: Registration and Issuance of Zions Bancorporation Common Stock
Issuable under Certain Stock Option Plans
Ladies and Gentlemen:
This Firm has acted as counsel to Zions Bancorporation, a Utah
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 of the Company (the "Registration Statement")
being filed today with the Securities and Exchange Commission (the
"Commission"). The Registration Statement relates to the issuance of up to
730,963 common shares (the "Shares") of the Company, no par value (the "Common
Shares"), pursuant to the following stock option plans (collectively the
"Plans"):
Aspen Bancshares, Inc. 1993 Non-Qualified Stock Option Plan For Directors
Aspen Bancshares, Inc. 1990 Incentive Stock Option Plan
Vectra Banking Corporation Employees' Equity Incentive Stock Option Plan
Vectra Banking Corporation Non-Employee Directors' Stock Option Plan
<PAGE>
Vectra Banking Corporation 1989 Non-Statutory Stock Option Plan
Second Amended and Restated 1988 Stock Option Plan of FP Bancorp, Inc.
SBT Bankshares, Inc. 1995 Non-Qualified Stock Option Agreement
The Commerce Bancorporation 1995 Restated Incentive Compensation Plan
The Commerce Bancorporation 1987 Stock Option Plan
This opinion is being furnished to you in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of
1933, as amended (the "1933 Act").
In connection with this opinion, we have examined and are familiar with
the original, or copies identified to our satisfaction, of the following: (i)
the Registration Statement, (ii) each of the Plans, (iii) the Restated Articles
of Incorporation of the Company, as amended, and the Restated Bylaws of the
Company, as amended, each as currently in effect, (iv) a specimen certificate
representing the Common Shares, and (v) certain resolutions adopted by the
applicable Board of Directors of the Company and its affiliates, relating to,
among other things, the execution and delivery of the Plans, the issuance of the
Shares and the filing of the Registration Statement and related matters.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural person, the authenticity of all documents
submitted to us as originals, the conformity of all documents submitted to us as
certified, conformed or photostatic copies and the authenticity of the originals
of such documents. In making our examination of documents executed by parties
other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations there under and
have also assumed the due authorization by all requisite actions, corporate or
other, and execution and delivery by such parties of such documents and the
validity, binding effect and enforceability thereof. As to any facts material to
the opinions expressed herein that we did not independently establish or verify,
we have relied upon statements and representations of officers and other
representatives of the Company, its affiliates and others.
Members of this Firm are admitted to the Bar of the State of Utah and we
express no opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, and to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that the Shares have been duly authorized for issuance by requisite
corporate action by the Company, and, when and if issued, delivered and paid for
in accordance with the terms and conditions of the Plans, will be validly
issued,fully paid and nonassessable. In rendering this opinion, we have assumed
that:
<PAGE>
(1) the outstanding options to purchase Shares are duly granted;
(2) the certificates representing the Shares will conform to the
form of specimen examined by us and such certificates are duly
executed and delivered by the Company;
(3) the Company maintains an adequate number of authorized but
unissued shares or treasury shares available for issuance to
those person granted Shares under the Plans; and
(4) the consideration for the Shares issued pursuant to the Plans
is actually received by the Company as provided in the Plans
or agreements executed in connection with the Plans.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement ;and to the reference to us under the caption "Legal
Matters" in the Prospectus. In giving this consent, we do not thereby admit that
we are in the category of person whose consent is required under Section 7 of
the 1933 Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
CALLISTER NEBEKER & McCULLOUGH
A Professional Corporation
/S/
Exhibit 23.1
Consent of KPMG Peat Marwick LLP, Independent Auditors
------------------------------------------------------
The Board of Directors
Zions Bancorporation
We consent to the use of our report dated January 26, 1998, with respect to the
consolidated financial statements of Zions Bancorporation and subsidiaries as of
December 31, 1997 and 1996, and for each of the years in the three-year period
ended December 31, 1997 incorporated herein by reference, which report appears
in the December 31, 1997, annual report on Form 10- K of Zions Bancorporation.
We also consent to the reference to our firm under the heading "Experts" in the
registration statement and prospectus.
/S/
KPMG Peat Marwick LLP
Salt Lake City, Utah
November 13, 1998
Exhibit 23.2
Consent of Callister Nebeker & McCullough
-----------------------------------------
Included in Exhibit 5.1
Exhibit 24.1
Power of Attorney
-----------------
See signature page
