SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
May 27, 1998 (March 25, 1998)
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Date of Report (Date of Earliest Event Reported)
ZIONS BANCORPORATION
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(Exact Name of Registrant As Specified In Its Charter)
UTAH
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(State or Other Jurisdiction of Incorporation)
0-2610 87-0227400
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(Commission File Number) (IRS Employer Identification No.)
One South Main, Suite 1380
Salt Lake City, Utah 84111
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(Address of Principal Executive Offices)(Zip Code)
(801) 524-4787
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(Registrant's Telephone Number, including Area Code)
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(Former Name or Former Address, If Changed Since Last Report)
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This Current Report on Form 8-K/A amends and supplements the Current
Report on Form 8-K dated April 3, 1998.
Item 5. Other Events.
On March 25, 1998, Zions Bancorporation ("Zions") entered into an
Agreement and Plan of Merger (the "Merger Agreement"), by and among Zions, SBC
Acquisition Corp. ("SBC") and Sumitomo Bank of California ("Sumitomo"), pursuant
to which SBC, an indirect wholly owned subsidiary of Zions, will merge with and
into Sumitomo (the "Merger").
In addition to the Merger Agreement, The Sumitomo Bank, Limited
("Sumitomo-Parent") and Zions signed a Voting Agreement (the "Voting
Agreement"), dated as of March 25, 1998, providing that in order to facilitate
the consummation of the Merger, Sumitomo-Parent agrees (1) to vote the number of
shares of Common Stock representing 49.99 percent of the shares of the Common
Stock outstanding as of the record date in favor of the Merger; (2) not to enter
into any voting arrangement other than with Zions and not to cause any entity
under its control to enter into any voting arrangement other than with Zions;
and (3) not to permit itself or any other entity under its control to solicit
proxies or in any way encourage opposition or competition with the consummation
of the Merger. The Voting Agreement shall terminate upon the earliest to occur
of a number of events, including (1) the consummation of the Merger, (2) the
termination of the Merger Agreement for certain reasons, including an inability
to obtain the requisite regulatory approvals or (3) the passage of 6 months from
the termination of the Merger Agreement for certain additional reasons,
including the failure of the stockholders to approve the transaction.
Zions and Sumitomo-Parent also entered into an Indemnification
Agreement, dated as of March 25, 1998, pursuant to which Sumitomo-Parent agrees,
subject to certain conditions, to indemnify Zions, SBC, the resultant bank and
each of their directors, officers and employees from liabilities arising from
litigation, administrative action or arbitral or other proceedings in connection
with the Merger Agreement, the Voting Agreement or any of the transactions
contemplated by those agreements. In addition, the Indemnification Agreement
provides that Sumitomo-Parent will indemnify Zions and Sumitomo-California for
certain taxes that were not paid or adequately reserved for in the financial
statements of Sumitomo-California as of the Closing Date.
The Voting Agreement and the Indemnification Agreement appear as
exhibits to this report and are incorporated herein by reference. The foregoing
summary is qualified in its entirety by reference to such documents.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not Applicable.
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(b) Not Applicable.
(c) Exhibits
The following exhibits are filed with this Current Report on Form 8-K:
Exhibit
Number Description
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99.3 Voting Agreement, dated March 25, 1998, between Zions
Bancorporation and The Sumitomo Bank, Limited.
99.4 Indemnification Agreement, dated March 25, 1998, between Zions
Bancorporation and The Sumitomo Bank, Limited.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunder duly authorized.
Dated: May 27, 1998
ZIONS BANCORPORATION
By: /s/ Dale M. Gibbons
-----------------------------
Name: Dale M. Gibbons
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit
Number Description
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99.3 Voting Agreement, dated March 25, 1998, between Zions
Bancorporation and The Sumitomo Bank, Limited.
99.4 Indemnification Agreement, dated March 25, 1998, between Zions
Bancorporation and The Sumitomo Bank, Limited.
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VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is entered into as of March 25,
1998, between the undersigned, The Sumitomo Bank, Limited, a shareholder
("Parent") of The Sumitomo Bank of California, a California corporation (the
"Company"), and Zions Bancorporation, a Utah corporation ("Buyer").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Buyer and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), by which the
Company will merge, subject to the terms and conditions set forth therein, with
a wholly owned subsidiary of Buyer ("Merger Sub"); and
WHEREAS, in order to induce Buyer and Merger Sub to enter into the
Merger Agreement, Parent wishes to agree (i) to vote the Subject Shares (as
defined below) so as to facilitate consummation of the Merger and (ii) not to
transfer or otherwise dispose of or encumber any of the Subject Shares.
NOW, THEREFORE, for good and valuable considera tion, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Parent. Parent represents that it (a) is the
record holder and beneficial owner (as such term is defined pursuant to Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "1934 Act")) of
not less than 13,991,802 shares of Common Stock of the Company (Parent's
"Shares") and (b) has full power and authority to make, enter into and carry out
the terms of this Agreement. This Agreement has been duly and validly executed
and delivered by Parent and (assuming due authorization, execution and delivery
by Buyer) this Agreement constitutes a valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as enforcement
may be limited by general principles of equity whether applied in a court of law
or a court of equity and by bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally.
2. Agreement to Vote Shares. Parent agrees to vote the number of Shares
representing 49.99% of the shares of Common Stock of the Company outstanding as
of the record date for the vote (the "Subject Shares"), and to cause any holder
of record of such Subject Shares to vote, at every
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meeting of the shareholders of the Company at which the following matters are
considered and at every adjournment thereof (a) in favor of adoption and
approval of the Merger Agreement and the Merger, (b) against any action or
agreement that would compete with, impede, interfere with or attempt to
discourage the Merger or inhibit the timely consummation of the Merger, (c)
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation of
the Company under the Merger Agreement and (d) except for the Merger and the
Merger Agreement, against any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of the Company or its subsidiaries. Parent agrees to deliver to
Buyer upon request a proxy substantially in the form attached hereto as Exhibit
A, which proxy shall be irrevocable during the term of this Agreement to the
extent permitted under California law.
3. No Voting Trusts. Parent agrees that it will not, nor will it permit
any entity under its control to, deposit any of the Subject Shares in a voting
trust or subject any of the Subject Shares to any arrangement with respect to
the voting of such Shares other than agreements entered into with Buyer.
4. No Proxy Solicitations. Parent agrees that it will not, nor will it
permit any entity under its control to, (a) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the 1934 Act) in opposition to or competition with the consummation of the
Merger or otherwise encourage or assist any party in taking or planning any
action which would compete with or otherwise serve to interfere with or inhibit
the timely consummation of the Merger in accordance with the terms of the Merger
Agreement, (b) directly or indirectly encourage, initiate or cooperate in a
shareholders' vote or action by consent of the Company's shareholders in
opposition to or in competition with the consummation of the Merger, or (c)
become a member of a "group" (as such term is used in Section 13(d) of the 1934
Act) with respect to any voting securities of the Company for the purpose of
opposing or competing with the consummation of the Merger.
5. Transfer and Encumbrance. Parent agrees not to voluntarily transfer,
sell, offer, pledge or otherwise dispose of or encumber any of the Subject
Shares.
6. Dissenters' Rights. Parent agrees that it will not exercise any
dissenters' rights with respect to the Subject Shares available under California
law.
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7. Approval of Terms. Parent acknowledges and agrees that pursuant to
the Merger Agreement it is receiving consideration that is different from the
consideration received by all other shareholders of the Company. Parent agrees
to use its best efforts to obtain approval of the terms and conditions of the
Merger Agreement from the California Commissioner of Financial Institutions
pursuant to Section 696.5 of the California Commercial Code or an exemption
therefrom in order to provide that the last two sentences of Section 1101 of the
California General Corporation Law do not apply to the transactions contemplated
by the Merger Agreement. If such approval or exemption is not obtained, Parent
shall use its best efforts to enter into substitute arrangements with Buyer to
achieve the equivalent effect as provided in the Merger Agreement with respect
to the purchase price payable by Buyer to Parent for Parent's Shares set forth
in the Merger Agreement. Parent acknowledges that the Parent Merger
Consideration is an integral part of the transactions contemplated in the Merger
Agreement and this Agreement.
8. Specific Performance. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
9. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
10. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an
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instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
11. Miscellaneous.
(a) This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State
of California.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than
the party as to which it is held invalid, shall not be affected.
(c) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur of
(i) the consummation of the Merger, (ii) the termination of the Merger
Agreement pursuant to Section 9.1(a), (b) or (c) thereof, by Buyer pursuant
to Section 9.1(d) thereof or by the Company pursuant to Section 9.1(e), (f)
or (g) thereof and (iii) six months following the termination of the Merger
Agreement by the Company pursuant to Section 9.1(d) thereof or by Buyer
pursuant to Section 9.1(e) or (f) thereof (the "Expiration Date").
(e) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference
shall be derived therefrom.
(f) The parties agree that there is not and has not been any other
agreement, arrangement or understanding between the parties hereto with
respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
ZIONS BANCORPORATION
By: /s/ Dale M. Gibbons
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Name: Dale M. Gibbons
Title: Chief Financial Officer
THE SUMITOMO BANK, LIMITED
By: /s/ Akira Kondoh
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Name: Akira Kondoh
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INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is entered into as of
March 25, 1998, between the undersigned, The Sumitomo Bank, Limited, a
shareholder ("Parent") of The Sumitomo Bank of California, a California
corporation (the "Company"), and Zions Bancorporation, a Utah corporation
("Buyer").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Buyer and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), by which the
Company will merge, subject to the terms and conditions set forth therein, with
a wholly owned subsidiary of Buyer ("Merger Sub") and Buyer and Parent are
entering into a Voting Agreement, dated as of the date hereof (the "Voting
Agreement"; and
WHEREAS, in order to induce Buyer and Merger Sub to enter into the
Merger Agreement and the Voting Agreement, Parent wishes to indemnify Buyer
against certain claims.
NOW, THEREFORE, for good and valuable considera tion, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Parent. Parent represents that it has full power
and authority to make, enter into and carry out the terms of this Agreement.
This Agreement has been duly and validly executed and delivered by Parent and
(assuming due authorization, execution and delivery by Buyer) this Agreement
constitutes a valid and binding obligation of Parent, enforceable against Parent
in accordance with its terms, except as enforcement may be limited by general
principles of equity whether applied in a court of law or a court of equity and
by bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally.
2. Indemnification. From and after the Closing Date, Parent agrees to
indemnify and hold harmless Buyer, Merger Sub, the Surviving Bank (as defined in
the Merger Agreement) and each of their directors, officers, employees and
agents (the "Indemnified Parties") against any losses, claims, damages,
liabilities, costs, expenses (including reasonable attorney's fees and expenses
in advance of the disposition of any claim, suit, proceeding or investigation
and including reasonable attorney's fees and expenses incurred in connection
with prevailing in a suit by an
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Indemnified Party to enforce its rights under this Section 2), judgments, fines
and amounts paid in settlement in connection with (i) any actual or threatened
legal, administrative, arbitral or other proceedings, claims, actions or
governmental or regulatory investigations of any nature (each, a "Third Party
Claim") based in whole or in part on, or arising in whole or in part out of, or
pertaining to this Agreement, the Merger Agreement, the Voting Agreement or any
of the transactions contemplated hereby or thereby, including the exercise of
dissenters' rights; provided, however, that any such indemnification obligation
under this clause (i) with respect to payments required to be paid to dissenting
shareholders (but not other expenses related thereto) shall only be to the
extent that the fair market value of the Dissenting Shares (as defined in the
Merger Agreement) which is required to be paid pursuant to Sections 1300-1312 of
the California General Corporation Law exceeds $38.25 per share; and (ii) any
Third Party Claims against the Company or any of its subsidiaries (a) existing
on the Closing Date or (b) threatened in writing (and notified in writing to
Parent) or commencing after the Closing Date and prior to the first anniversary
of the Closing Date where the event, act, omission or condition of the Company
or any of its subsidiaries giving rise to such Third Party Claim is in existence
or occurred prior to the Closing Date; provided, however, that, notwithstanding
the foregoing, (1) Parent shall have no indemnification obligation under this
clause (ii)(b) unless all the facts and circumstances sufficient to give rise to
the Third Party Claim are in existence or have occurred prior to the Closing
Date, (2) Parent shall have no indemnification obligation under this clause
(ii)(b) for any Third Party Claim relating to or arising out of a breach of
contract (x) unless the event, act, omission or condition of the Company or any
of its subsidiaries which constitutes a breach or violation of, or a default
under, the applicable contract is in existence or occurred prior to the Closing
Date and (y) unless, and any indemnification obligation shall only be to the
extent that, the damages incurred by the Company and its subsidiaries in
connection with such breach, violation or default exceeded the benefits obtained
by the Company and its subsidiaries under such contract, (3) Parent shall have
no indemnification obligation under this clause (ii)(b) with respect to any
Third Party Claim where the associated liability (x) was reflected or reserved
against in the consolidated balance sheet of the Company and its subsidiaries as
of December 31, 1997 or (y) is set forth in the Company Disclosure Schedule (as
defined in the Merger Agreement) and (4) Parent shall have no indemnification
obligation under this clause (ii)(b) with respect to any individual Third Party
Claim where the associated liability
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does not exceed $50,000 and, where such liability exceeds $50,000, Parent's
indemnification obligation shall only be with respect to the portion of such
liability in excess of $50,000. In the event of any such threatened or actual
claim, action, suit, proceeding or investigation (whether asserted or arising
before or after the Expiration Date), the Indemnified Parties may retain counsel
reasonably satisfactory to Parent; provided, however, that (1) Parent shall have
the right to assume the defense thereof and upon such assumption Parent shall
not be liable to any Indemnified Party for any legal expenses of other counsel
or any other expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof, except that if Parent elects not to assume
such defense or counsel for the Indemnified Parties reasonably advises that
there are issues which raise conflicts of interest between Parent and the
Indemnified Parties, the Indemnified Parties may retain counsel reasonably
satisfactory to them after consultation with Parent, and Parent shall pay the
reasonable fees and expenses of such counsel for the Indemnified Parties, (2)
Parent shall in all cases be obligated pursuant to this paragraph to pay for
only one firm of counsel for all Indemnified Parties, (3) Parent shall not be
liable for any settlement effected without its prior written consent (which
consent shall not be unreasonably withheld) and (4) Parent shall have no
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall ultimately determine, and such determination shall have
become final and nonappealable, that indemnification of such Indemnified Party
in the manner contemplated hereby is prohibited by applicable law. Any
Indemnified Party wishing to claim indemnification under this Section 2, upon
learning of any such claim, action, suit, proceeding or investigation, shall
promptly notify Parent thereof, provided that the failure to so notify shall not
affect the obligations of Parent under this Section 2 except to the extent such
failure to notify materially prejudices Parent. Subject to the terms and
conditions hereof, Parent's obligations under this Section 2 shall continue in
full force and effect without time limit from and after the Effective Time.
3. Liability for Taxes and Related Matters. (a) Indemnification. (i)
Subject to subparagraph (ii) below, Parent agrees to indemnify Buyer and the
Company (each a "Tax Indemnified Party" and together, the "Tax Indemnified
Parties") against the following taxes (the "Subject Taxes") for any taxable year
or period or portion thereof ending on or before the Closing Date to the extent
that the Subject Taxes were not paid or adequately reserved for (in accordance
with generally accepted accounting principles) in
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the financial statements of the Company as of the Closing Date: (1) any income
or franchise taxes (including any interest and any penalties with respect
thereto) imposed on the Company by the State of California (the "California
Taxes"); (2) any income or franchise taxes (including any interest and any
penalties with respect thereto) imposed on the Company as a result of any
transactions between the Company and Parent or any affiliate of Parent entered
into prior to the Closing Date; and (3) any withholding taxes (including any
interest and any penalties with respect thereto) imposed on the Company as a
result of any transaction entered into by the Company prior to the Closing Date.
(ii) Anything herein to the contrary notwithstanding, no
indemnification shall be available pursuant to clause (1) in subparagraph (i)
above for California Taxes unless and until such indemnity exceeds the sum of
(x) the Company's reserves for California Taxes as of the Closing Date and (y)
any refunds of California Taxes attributable to any year or period or portion
thereof ending on or before the Closing Date which are received after the
Closing Date (such sum being the "Threshold Amount"), and such indemnity shall
be solely for the amount of California Taxes indemnifiable pursuant to clause
(1) of subparagraph (i) above (without giving effect to this subparagraph (ii))
which is in excess of the Threshold Amount. It is understood and agreed by the
parties that (1) the Company establishes reserves for California Taxes at the
end of each calendar quarter, (2) the Company is permitted to continue to
establish reserves for California Taxes in a manner consistent with past
practice and (3) the Company is permitted for purposes of this Agreement during
the ten (10) days prior to the Closing Date to establish a reserve for
California Taxes in a manner consistent with past practice for the period
beginning on the day after the last calendar quarter for which such reserves
were established through the Closing Date.
(iii) Parent shall pay to Buyer all indemnity amounts in respect of any
Tax Claim (as defined below) within twenty (20) business days after such Tax
Claim is disposed of or a Final Determination has been made with respect
thereto. "Final Determination" shall mean (1) the entry of a decision by a court
of competent jurisdiction at such time as an appeal may no longer be taken from
such decision or (2) the execution of a closing agreement or its equivalent
between the particular taxpayer and the particular, relevant taxing authority.
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(b) Control of Contests.
(i) If a notice of deficiency, proposed adjustment, adjustment,
assessment, audit, examination, suit, dispute or other claim (a "Tax Claim")
shall be delivered, sent, commenced, or initiated to or against the Company,
Buyer or any affiliate of the Company or Buyer, by any taxing authority (whether
foreign or domestic) with respect to Subject Taxes for which the Indemnified
Parties are entitled to indemnification under this Section 3, Buyer shall notify
Parent of the Tax Claim in writing at the address provided in Section 7(g) of
this Agreement within five (5) business days of receiving the Tax Claim,
provided that the failure to so notify shall not affect the obligations of
Parent under this Section 3 except to the extent that such failure to notify
materially prejudices Parent.
(ii) Parent shall have the sole right to represent the interests of the
Company in any tax audit or administrative proceeding to the extent such audit
or administrative proceeding relates to Subject Taxes for any taxable periods
ending on or before the Closing Date, and to employ counsel of its choice at its
expense. Notwithstanding the foregoing, Parent shall not be entitled to settle
any claim for Subject Taxes which would adversely affect the liability for
Subject Taxes of Buyer or the Company for any taxable period after the Closing
Date without the prior written consent of Buyer, which consent shall not be
unreasonably withheld; provided, however, such consent shall not be necessary to
the extent that Parent has indemnified Buyer against the effects of any such
settlement.
(iii) Parent shall be entitled to participate at its expense in the
defense of any claim for Subject Taxes for a year or period ending after the
Closing Date which may be the subject of indemnification by Parent pursuant to
this Section 3, with the written consent of Buyer, which consent shall not be
unreasonably withheld.
(iv) None of Buyer or the Company may agree to settle any Tax Claim
which may be the subject of indemnification by Parent under this Section 3
without the prior written consent of Parent, which consent shall not be
unreasonably withheld.
(c) Mutual Cooperation. The Company and Parent each shall provide the
other with such assistance as may reasonably be requested by either of them in
connection with any Tax Claim relating to Subject Taxes, and each will
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retain and provide the other with any records or information that may be
relevant to such Tax Claim. Such assistance shall include making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder and shall include providing
copies of any relevant Tax Returns (as defined in the Merger Agreement) and
supporting work schedules.
(d) Dispute Resolution. If Parent and the Indemnified Parties cannot
agree as to the amount of Parent's indemnification obligation under this Section
3 or the interpretation of any provision of this Section 3, Parent and the
Indemnified Parties shall choose an independent, "Big Six" accounting firm,
acceptable to each of them (the "Selected Accounting Firm"), and the decision of
the Selected Accounting Firm as to the amount of Parent's indemnification
obligation, if any, or the interpretation of any such provision shall be final
and binding. Following the decision of the Selected Accounting Firm, the parties
shall each take (or cause to be taken) any action that is necessary or
appropriate to implement such decision.
(e) Section 338 Election. Notwithstanding anything in this Agreement to
the contrary, Parent, Buyer and the Company agree that an election under Section
338 of the Internal Revenue Code of 1986, as amended (or any similar provision
of the law of any taxing jurisdiction) (a "Section 338 Election") will not be
made with respect to the transactions contemplated pursuant to the Merger
Agreement, and if Buyer, the Company or any affiliate of Buyer or the Company
makes such a Section 338 Election, the Parent shall have no indemnity
obligations under this Section 3.
(f) Miscellaneous.
(i) Any and all costs and expenses of the Selected Accounting Firm
shall be borne equally by Parent and the Indemnified Parties.
(ii) All payments between the parties pursuant to this Agreement shall
be treated as adjustments to the purchase price for all tax purposes.
(g) Termination of Tax Sharing Agreements. Any tax allocation or
sharing agreement or arrangement, whether or not written, that may have been
entered into by Parent or any affiliate of Parent (other than the Company) and
the Company shall be terminated as to the Company as of the Closing Date, and no
payments which are owed by or to the Company pursuant thereto shall be made
thereunder.
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4. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
5. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by all the parties hereto. No
waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
6. Service Agreements. Buyer agrees that from and after the Effective
Time (as defined in the Merger Agreement) it shall cause the Company (or any
successor or permitted assign thereof) to perform all of its obligations under
each of (i) the Service Agreement, effective as of March 29, 1996, as amended
(the "L.A. Service Agreement"), between the Company and Parent's Los Angeles
Branch and (ii) the Service Agreement, effective as of March 25, 1996, as
amended (the "S.F. Service Agreement" and, together with the L.A. Service
Agreement, the "Service Agreements"), between the Company and Parent's San
Francisco Branch. Buyer agrees that it will not permit the Company (or any
successor or permitted assign thereof) (i) to give less than 90 days notice of
termination of either Service Agreement and (ii) to give any notice of
termination of, or take any action to terminate, any Service Agreement prior to
90 days prior to the first anniversary of the Effective Time. Buyer and Parent
also agree to negotiate in good faith an agreement to be entered into prior to
the Effective Time providing for cooperation with respect to existing
relationships with and services provided to customers of Parent and the Company.
7. Miscellaneous.
(a) This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of
California.
(b) If any provision of this Agreement or the application of such
provision to any person or
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circumstances shall be held invalid by a court of competent jurisdiction,
the remainder of the provision held invalid and the application of such
provision to persons or circumstances, other than the party as to which it
is held invalid, shall not be affected.
(c) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall terminate upon the termination of the Merger
Agreement (if terminated prior to the consummation of the Merger) and shall
survive the consummation of the Merger.
(e) All Section headings herein are for convenience of reference only
and are not part of this Agreement, and no construction or reference shall be
derived therefrom.
(f) The parties agree that there is not and has not been any other
agreement, arrangement or understanding between the parties hereto with respect
to the matters set forth herein.
(g) All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally, telecopied (with
confirmation), mailed by registered or certified mail (return receipt requested)
or delivered by an express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) If to Parent to:
The Sumitomo Bank, Limited
277 Park Avenue
New York, New York 10172
Attention: Managing Director,
Head of North American Operations
and
The Sumitomo Bank, Limited
277 Park Avenue
New York, New York 10172
Attention: General Counsel
with copies to:
-8-
<PAGE>
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: William S. Rubenstein, Esq.
Mitchell J. Solomon, Esq.
(ii) If to Buyer to:
Zions Bancorporation
One Main Street
Salt Lake City, Utah 84111
Attention: Chief Executive Officer
with copies to:
Sullivan & Cromwell
444 South Flower Street
Los Angeles, California 90071
Attention: Stanley F. Farrar, Esq.
(h) Buyer agrees that the provisions of Section 7.9 of the Merger
Agreement are also intended to be for the benefit of, and shall be enforceable
by, Parent.
-9-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
ZIONS BANCORPORATION
By: /s/ Dale M. Gibbons
-------------------
Name: Dale M. Gibbons
Title: Chief Financial Officer
THE SUMITOMO BANK, LIMITED
By: /s/ Akira Kondoh
---------------------
Name: Akira Kondoh
-10-
