SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS
FILED PURSUANT TO 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO 13D-2(a)
(Amendment No. _____)*
REGENCY BANCORP
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(Name of Issuer)
COMMON STOCK, NO PAR VALUE
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(Title of Class of Securities)
00075884Q1
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(CUSIP Number)
DALE M. GIBBONS, ZIONS BANCORPORATION, ONE SOUTH MAIN,
SUITE 1380, SALT LAKE CITY, UTAH 84111 (801) 524-4787
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
APRIL 27, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
[ ].
NOTE: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-1(a) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 13 Pages)
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* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP NO. 00075884Q1 13D PAGE 2 of 13 PAGES
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ZIONS BANCORPORATION, I.R.S. IDENTIFICATION NO: 87-0227400.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
WC.
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
UTAH.
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7. SOLE VOTING POWER
NUMBER OF 522,374*
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY -0-
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 522,374
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
-0-
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
THE REPORTING PERSON HAS ACQUIRED AN OPTION TO PURCHASE UP TO 522,374
SHARES OF REGENCY COMMON STOCK.
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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CUSIP NO. 00075884Q1 13D PAGE 3 of 13 PAGES
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.9%
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14. TYPE OF REPORTING PERSON
CO.
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ITEM 1. SECURITY AND ISSUER.
(a) This Schedule 13D relates to the no par value common stock of
Regency.
(b) The principal executive offices of the Issuer are located at 7060
North Fresno Street, Fresno, California 93720.
ITEM 2. IDENTITY AND BACKGROUND.
(a) The reporting person is Zions Bancorporation.
(b) The reporting person is incorporated in Utah.
(c) The reporting person's principal business is that of a holding
company for banking subsidiaries.
(d) The address of the reporting person's principal business and
principal office is One South Main, Suite 1380, Salt Lake City,
Utah 84111.
(e) The reporting person has not been convicted in a criminal
proceeding during the last five years.
(f) The reporting person, during the last five years, was not a party
to any civil proceeding of a judicial or administrative body of
competent jurisdiction which resulted in or is subject to a
judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
It is presently anticipated that, should any purchase of Regency Common
Stock be made by Zions pursuant to the Option Agreement described below
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CUSIP NO. 00075884Q1 13D PAGE 4 of 13 PAGES
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in response to Item 4, or otherwise, the source of any funds used in
any such purchase would be the available cash, cash equivalents,
available for sale securities and bank financing of Zions.
ITEM 4. PURPOSE OF TRANSACTION.
A. THE MERGER AGREEMENT.
On April 27, 1999, Zions, Regency and Regency Bank, a California
state-charted member bank and a wholly-owned subsidiary of Regency,
entered into an Agreement and Plan of Merger (the "Merger Agreement")
pursuant to which Regency agreed to merge with and into Zions (the
"Merger"). The Merger is subject to receipt of regulatory and Regency
shareholder approval, as well as other closing conditions, and it is
currently estimated that the Merger will be consummated in the third
quarter of 1999, subject to satisfaction of such closing conditions.
Under the terms of the Merger, each holder of Regency Common Stock
issued and outstanding immediately prior to the Effective Time (as
defined in the Merger Agreement) will receive 0.3233 of a share of
Zions Common Stock in exchange for each share of Regency Common Stock,
subject to adjustment as provided in the Merger Agreement. Upon
consummation of the Merger, the articles of incorporation and by-laws
of Zions will be the articles of incorporation and by-laws of the
surviving corporation.
The Merger is subject to the approval of the Board of Governors of the
Federal Reserve Board (the "Federal Reserve Board") and California
banking authorities, the approval of the shareholders of Regency, and
the satisfaction of various other terms and conditions set forth in the
Merger Agreement.
B. THE OPTION.
As an inducement and a condition to Zions' entering into the Merger
Agreement, on April 27, 1999, Regency and Zions entered into a Stock
Option Agreement (the "Option Agreement"), pursuant to which Regency
granted Zions an option (the "Option") entitling it to purchase up to
522,374 (or such lesser amount as shall constitute 19.9% of the
outstanding shares of Regency Common Stock on the date of exercise)
fully paid and nonassessable shares of Regency Common Stock at a
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CUSIP NO. 00075884Q1 13D PAGE 5 of 13 PAGES
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price per share equal to $17.08 per share (the "Option Price"), subject
to adjustment in certain circumstances.*
Subject to applicable law, regulatory restrictions and other certain
conditions, Zions may exercise the Option, in whole or in part, at any
time following the occurrence of a Purchase Event (as defined below)
and prior to an Exercise Termination Event (as defined below).
As defined in the Option Agreement, "Purchase Event," means the
occurrence of either of the following events or transactions:
1. The acquisition by any Person (the term "Person" for purposes of
the Option Agreement having the meaning assigned thereto in
Sections 3(a)(9) and 13(d)(3) of the Securi ties Exchange Act of
1934 (the "Exchange Act"), and the rules and regulations
thereunder) other than Zions or any of its subsidiaries (each a
"Zions Subsidiary") of beneficial ownership of shares of Regency
Common Stock, such that, upon the consummation of such
acquisition, such Person would have beneficial ownership, in the
aggregate, of 25% or more of the then outstanding shares of
Regency Common Stock; or
2. The occurrence of a Preliminary Purchase Event (as defined below)
described in paragraph (1) under the definition of "Preliminary
Purchase Event" below except that the percentage referred to in
clause (z) of such paragraph (1) shall be 25%.
As defined in the Option Agreement, "Exercise Termination Event" means
any one of the following events:
1. The time immediately prior to the Effective Time;
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* In the event of any change in the Regency Common Stock by reason of stock
dividends, split-ups, recapitalizations, or the like, the type and number of
shares of Regency Common Stock subject to the Option shall be increased so that,
after such issuance and together with shares of Regency Common Stock previously
issued pursuant to the exercise of the Option, the number of shares of Regency
Common Stock subject to the Option equals 19.9% of the number of shares of
Regency Common Stock then issued and outstanding.
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CUSIP NO. 00075884Q1 13D PAGE 6 of 13 PAGES
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2. Twelve months after the first occurrence of a Purchase Event;
3. Eighteen months after the termination of the Merger Agreement
following the occurrence of a Preliminary Purchase Event;
4. The termination of the Merger Agreement in accordance with the
terms thereof prior to the occurrence of a Purchase Event or a
Preliminary Purchase Event (other than a termination of the
Merger Agreement by Zions pursuant to Section 8.01(b)(i) or (ii)
thereof (breach of Merger Agreement by either party entitles
other party to terminate Merger Agreement) or by Zions and
Regency pursuant to Section 8.01(a) thereof (mutual agreement to
terminate the Merger Agreement) if Zions shall at that time have
been entitled to terminate the Merger Agreement pursuant to
Section 8.01(b)(i) or (ii) thereof (provided that the breach of
Regency giving rise to such termination or such right to
terminate was willful) or by Zions pursuant to Section 8.01(e) or
Section 8.01(f) thereof);
5. Eighteen months after the termination of the Merger Agreement by
Zions pursuant to Section 8.01(b)(i) or (ii) thereof or by Zions
and Regency pursuant to Section 8.01(a) thereof if Zions shall at
that time have been entitled to terminate the Merger Agreement
pursuant to Section 8.01(b)(i) or (ii) thereof (provided that the
breach of Regency giving rise to such termination or such right
to terminate was willful) or by Zions pursuant to Section 8.01(e)
or Section 8.01(f) thereof.
As defined in the Option Agreement, "Preliminary Purchase Event" means
any one of the following events:
1. Regency or any of its subsidiaries (each a "Regency Subsidiary")
shall have entered into an agreement to engage in an Acquisition
Transaction (as defined below) with any Person other than Zions
or any Zions Subsidiary or the Board of Directors of Regency
shall have recommended that the shareholders of Regency approve
or accept any Acquisition Transaction with any Person other than
Zions or any Zions Subsidiary. For purposes of the Option
Agreement,
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CUSIP NO. 00075884Q1 13D PAGE 7 of 13 PAGES
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"Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving Regency or
any Regency Subsidiary, (y) a purchase, lease or other
acquisition of all or substantially all of the assets of or
assumption of all or substantially all the deposits of Regency or
any Regency Subsidiary or (z) a purchase or other acquisition
(including by way of merger, consolidation, share exchange or
otherwise) of securities representing 10% or more of the voting
power of Regency or any Regency Subsidiary, provided that the
term "Acquisition Transaction" does not include any internal
merger or consolidation involving only Regency and/or Regency
Subsidiaries;
2. Any Person (other than Zions or any Zions Subsidiary or any
Regency Subsidiary acting in a fiduciary capacity in the ordinary
course of business) shall have acquired Beneficial Ownership or
the right to acquire Beneficial Ownership, of shares of Regency
Common Stock (the term "Beneficial Ownership" for purposes of the
Option Agreement having the meaning assigned thereto in Section
13(d) of the Exchange Act, and the rules and regulations
thereunder) such that, upon the consummation of such acquisition,
such Person would have Beneficial Ownership, in the aggregate, of
10% or more of the then outstanding shares of Regency Common
Stock;
3. Any Person other than Zions or any Zions Subsidiary shall have
made a bona fide proposal to Regency or its shareholders, by
public announcement or written communication that is or becomes
the subject of public disclosure, to engage in an Acquisition
Transaction (including, without limitation, any situation in
which any Person other than Zions or any Zions Subsidiary shall
have commenced (as such term is defined in Rule 14d-2 under the
Exchange Act) or shall have filed a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"),
with respect to, a tender offer or exchange offer to purchase any
shares of Regency Common Stock such that, upon consummation of
such offer, such Person would own or control 10% or more of the
then outstanding shares of Regency Common Stock (such an offer
being referred to in the
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CUSIP NO. 00075884Q1 13D PAGE 8 of 13 PAGES
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Option Agreement as a "Tender Offer" or an "Exchange Offer,"
respectively));
4. After a proposal is made by a third party to Regency or its
shareholders to engage in an Acquisition Transaction, or such
third party states its intention to make such a proposal if the
Merger Agreement terminates and/or the Option expires, Regency
shall have breached any covenant or obligation contained in the
Merger Agreement and such breach would entitle Zions to terminate
the Merger Agreement (without regard to the cure period provided
for therein unless such cure is promptly effected without
jeopardizing consummation of the Merger) pursuant to the terms of
the Merger Agreement;
5. The holders of Regency Common Stock shall not have approved the
Merger Agreement by the requisite vote at the meeting of such
stockholders held for the purpose of voting on the Merger
Agreement, or such meeting shall not have been held or shall have
been canceled prior to termination of the Merger Agreement after
it shall have been publicly announced that any Person (other than
Zions or any Zions Subsidiary) shall have (x) made, or disclosed
an intention to make, a bona fide proposal to engage in an
Acquisition Transaction, (y) commenced a Tender Offer or filed a
registration statement under the Securities Act with respect to
an Exchange Offer or (z) filed an application (or given a notice)
with, whether in draft or final form, the Federal Reserve Board
or any other governmental authority or regulatory or
administrative agency or commission (each, a "Governmental
Authority"), for approval to engage in an Acquisition
Transaction;
6. Any Person (other than Zions or any Zions Subsidiary), other than
in connection with a transaction to which Zions has given its
prior written consent, shall have filed an application or notice
with the Federal Reserve Board or other Governmental Authority
for approval to engage in an Acquisition Transaction; or
7. Regency's Board of Directors shall have withdrawn or modified (or
publicly announced its intention to withdraw or modify) in any
manner adverse in any respect to Zions its recommendation that
the stockholders of
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CUSIP NO. 00075884Q1 13D PAGE 9 of 13 PAGES
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Regency approve the transactions contemplated by the Merger
Agreement, or Regency or any Regency Subsidiary shall have
authorized, recommended, proposed (or publicly announced its
intention to authorize, recommend or propose) an agreement to
engage in an Acquisition Transaction with any person other than
Zions or a Zions Subsidiary.
As provided in the Option Agreement, in the event that Zions is
entitled to and wishes to exercise the Option, it must send to Regency
a written notice (the date of which is referred to in the Option
Agreement as the "Notice Date") specifying (1) the total number of
shares of Regency Common Stock which Zions intends to purchase
pursuant to such exercise, (2) the aggregate purchase price as
provided in the Option Agreement, (3) a date for the closing that
shall not be less than three business days nor more than 30 business
days from the Notice Date and (4) a place at which the closing of such
purchase shall take place; provided, however, that if prior
notification to or approval of the Federal Reserve Board or any other
Governmental Authority is required in connection with such purchase,
Zions will promptly file and expeditiously process the required notice
or application for approval.
Under the Bank Holding Company Act of 1956 (the "BHC Act"), Zions may
not directly or indirectly acquire more than 5% of the outstanding
shares of any class of voting securities of Regency without
application to and prior approval from the Federal Reserve Board.
If Regency enters into certain agreements relating to the
consolidation or merger of Regency or the sale of substantially all of
its assets or deposits, Regency is required to make proper provision
so that the Option will, upon consummation of such transaction, be
converted into, or exchanged for, an option (the "Substitute Option"),
at Zions' election, in the Acquiring Corporation (as defined therein)
or in any Person that controls the Acquiring Corporation. The
Substitute Option generally will have the same terms and conditions as
the Option; provided, however, that to the extent terms and conditions
of the Substitute Option cannot legally be identical to those of the
Option, they will in no event be less advantageous to Zions.
In certain circumstances related to the exercise of the Option, the
time period specified in the
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CUSIP NO. 00075884Q1 13D PAGE 10 of 13 PAGES
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Option Agreement will be extended (1) to the extent necessary to
obtain all regulatory approvals and for the expiration of all
statutory waiting periods and (2) to the extent necessary to avoid
liability under Section 16(b) of the Exchange Act by reason of such
exercise; provided, however, that in no event shall any closing date
occur more than six months after the related Notice Date.
The Option may be assigned by Zions in certain circumstances, subject
to the terms and conditions described in the Option Agreement.
In addition, any shares of Regency Common Stock purchased upon the
exercise of the Option may be resold by Zions pursuant to registration
rights under the Option Agreement.
Upon the occurrence of a Purchase Event that occurs prior to an
Exercise Termination Event, (i) at the request of Zions, Regency has
agreed to repurchase the Option from Regency at a price (the "Option
Repurchase Price") equal to (x) the amount by which (A) the
market/offer price (as defined below) exceeds (B) the Option Price,
multiplied by the number of shares for which the Option may then be
exercised and (ii) at the request of the owner of any shares that have
been issued upon exercise of the Option (the "Option Shares"), Regency
has agreed to repurchase such number of the Option Shares from the
owner thereof as the owner shall designate at a price (the "Option
Share Repurchase Price") equal to (x) the market/offer price
multiplied by the number of Option Shares so designated. The term
"market/offer price" shall mean the highest of (i) the price per share
of Regency Common Stock at which a tender offer or exchange offer
therefor has been made after the date hereof and on or prior to the
date of request for repurchase, (ii) the price per share of Regency
Common Stock paid or to be paid by any third party pursuant to an
agreement with Regency, (iii) the highest closing price for shares of
Regency Common Stock within the 90-day period ending on the date of
the request for repurchase as reported on NASDAQ or (iv) in the event
of a sale of all or substantially all of Regency's assets, the sum of
the price paid in such sale for such assets and the current market
value of the remaining assets of Regency as determined by a
nationally-recognized independent investment banking firm mutually
selected by Zions or the owner of the Options Shares, as the case may
be, on the one hand, and Regency, on the other hand,
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CUSIP NO. 00075884Q1 13D PAGE 11 of 13 PAGES
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divided by the number of shares of Regency Common Stock outstanding at
the time of such sale.
Copies of the Option Agreement and the Merger Agreement are filed as
exhibits to this Schedule 13D and are incorporated herein by
reference. The foregoing summary is not intended to be complete and is
qualified in its entirety by reference to such exhibits.
C. PURCHASES OF REGENCY COMMON STOCK.
During the 60-day period prior to the date hereof, Zions has not
acquired any shares of Regency Common Stock. Subject to market
conditions and developments with respect to the Merger, Zions may
purchase additional shares of Regency Common Stock in the open market
or in privately negotiated transactions, to the extent permitted by
the BHC Act and federal securities laws.
Other than as described above or in item 5 below, Zions does not have
any plans or proposals which relate to or would result in any of the
matters listed in item 4(a)-(j) of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The Option. As a result of entry into the Option Agreement and
the granting of the Option thereunder, pursuant to Rule
13d-3(d)(i) under the Exchange Act, Zions is deemed to own
beneficially 522,374 shares of Regency Common Stock (or such
lesser amount as shall constitute 19.9% of the outstanding shares
of Regency Common Stock on the date of exercise), constituting
approximately 19.9% of the shares of Regency Common Stock issued
and outstanding as of April 27, 1999. Zions expressly disclaims
any beneficial ownership of the 522,374 shares of Regency Common
Stock which are obtainable by Zions upon exercise of the Option
because the Option is exercisable only in the circumstances set
forth in the Option Agreement, which is described in Item 4
hereof, none of which has occurred as of the date hereof and only
then with regulatory approval (if, as a consequence, Zions would
own more than 5% of the outstanding shares of Regency Common
Stock).
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CUSIP NO. 00075884Q1 13D PAGE 12 of 13 PAGES
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(b) If Zions were to exercise the Option, it would have sole power to
vote and, subject to the terms of the Option Agreement, sole
power to direct the disposition of, the shares of Regency Common
Stock covered thereby.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
Except for the Option Agreement and the Merger Agreement described in
Item 4 above and except as set forth in the immediately following
paragraph, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) between the reporting person and any
person with respect to any securities of the Issuer.
In connection with the execution of the Merger Agreement and as an
inducement and a condition of Zions' entering into the Merger
Agreement, certain directors, officers and shareholders of Regency have
entered into shareholder agreements pursuant to which such individuals,
in their capacity as shareholders of Regency, have agreed to vote or
cause to be voted, or execute a written consent with respect to, the
shares of Regency Common Stock held by such individuals in favor of
adoption and approval of the Merger Agreement and the Merger and all
transactions relating thereto at every meeting of the shareholders of
Regency at which such matters are considered and at every adjournment
thereof and in connection with every proposal to take action by written
consent with respect thereto. A copy of the form of shareholders
agreement is filed as an exhibit to this Schedule 13D and is
incorporated herein by reference. The foregoing summary is not intended
to be complete and is qualified in its entirety by reference to such
exhibit.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits to this Schedule 13D:
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CUSIP NO. 00075884Q1 13D PAGE 13 of 13 PAGES
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99.1 Agreement and Plan of Merger, dated as of April 27, 1999 by
and among Zions Bancorporation, Regency Bancorp and Regency
Bank (incorporated by reference to Exhibit 2 to the Current
Report on Form 8-K filed by Regency Bancorp on May 6,
1999).
99.2 Stock Option Agreement, dated as of April 27, 1999, by and
between Zions Bancorporation and Regency Bancorp
(incorporated by reference to Exhibit 99(a) to the Current
Report on Form 8-K filed by Regency Bancorp on May 6,
1999).
99.3 Form of Shareholder Agreement.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: May 6, 1999 ZIONS BANCORPORATION
By: /s/ DALE M. GIBBONS
---------------------------------
Name: Dale M. Gibbons
Title: Chief Financial
Officer
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of April ___, 1999 (this "Agreement"),
by and between (i) _______________, a [director][officer] and shareholder (the
"Shareholder") of Regency Bancorp, a California corporation (the "Company"), and
(ii) Zions Bancorporation, a Utah corporation ("Zions"). All capitalized terms
used herein and not defined herein shall have the meaning assigned thereto in
the Merger Agreement (defined below).
WHEREAS, the Company, Regency Bank, a California state-chartered member
bank and wholly-owned subsidiary of the Company, and Zions have entered into an
Agreement and Plan of Merger, dated the date hereof (the "Merger Agreement"),
providing for the business combination transaction contemplated therein in which
the Company will merge with and into Zions pursuant to the terms and conditions
of the Merger Agreement (the "Merger") and Zions will pay consideration to the
Company's shareholders in the form of Zions Common Stock;
WHEREAS, the Shareholder beneficially owns with power to vote or direct
the voting of the shares of Company Common Stock identified on Annex I hereto
(such shares, together with all shares of Company Common Stock subsequently
acquired by the Shareholder during the term of this Agreement, being referred to
as the "Shares"); and
WHEREAS, in order to induce Zions to enter into the Merger Agreement
and in consideration of the substantial expenses incurred and to be incurred by
Zions in connection therewith, the Shareholder has agreed to enter into and
perform this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Agreement to Vote Shares. Shareholder shall vote or cause to be
voted, or execute a written consent with respect to, the Shares in favor of
adoption and approval of the Merger Agreement and the Merger and all
transactions relating thereto at every meeting of the shareholders of the
Company at which such matters are considered and at every adjournment thereof
and in connection with every proposal to take action by written consent with
respect thereto.
2. No Voting Trusts. Shareholder agrees that Shareholder will not, nor
will Shareholder permit any entity under Shareholder's control to, deposit any
Shares in a
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voting trust or subject the Shares to any agreement, arrangement or
understanding with respect to the voting of the Shares inconsistent with this
Agreement.
3. Limitation on Sales. During the term of this Agreement, Shareholder
agrees not to sell, assign, transfer, pledge, encumber or otherwise dispose of
any of the Shares.
4. Representations and Warranties of Shareholder. Shareholder
represents and warrants to and agrees with Zions as follows:
a. Capacity. Shareholder has all requisite capacity and authority to
enter into and perform his or her obligations under this Agreement.
b. Binding Agreement. This Agreement constitutes the valid and legally
binding obligation of Shareholder, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
c. Non-Contravention. The execution and delivery of this Agreement by
Shareholder does not, and the performance by Shareholder of his or her
obligations hereunder and the consummation by Shareholder of the
transactions contemplated hereby will not, violate or conflict with, or
constitute a default under, any agreement, instrument, contract or other
obligation or any order, arbitration award, judgment or decree to which
Shareholder is a party or by which Shareholder is bound, or any statute,
rule or regulation to which Shareholder is subject or, in the event that
Shareholder is a corporation, partnership, trust or other entity, any
charter, bylaw or other organizational document of the Shareholder.
d. Ownership of Shares. Annex I hereto correctly sets forth, as of the
date of this Agreement, the number of shares of Company Common Stock owned
beneficially and of record by the Shareholder. Shareholder has good title
to all of the Shares indicated as owned by Shareholder in the capacity set
forth on Annex I as of the date hereof, and such Shares are so owned free
and clear of any liens, security interests, charges or other encumbrances.
5. Term of Agreement; Termination. The term of this Agreement shall
commence on the date hereof and such term and this Agreement shall terminate
upon the earlier to occur of (i) the Effective Time or (ii) the date on which
the Merger Agreement is terminated in accordance with its terms. Upon such
termination, no party shall have any further obligations or liabilities
hereunder; provided, however, such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
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6. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties 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 each party hereto. No waiver of any provisions
hereof by either 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.
7. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by a
reputable overnight courier service to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
If to Zions, to:
Zions Bancorporation
One South Main Street, Suite 1380
Salt Lake City, Utah 84111
Telecopier: (801) 524-2129
Attention: Dale M. Gibbons
With copies to:
Sullivan & Cromwell
1888 Century Park East, Suite 2100
Los Angeles, California 90067
Telecopier: (310) 712-8800
Attention: Stanley F. Farrar
If to the Shareholder, to:
------------------------------
------------------------------
------------------------------
Telecopier:
------------------
Attention:
------------------
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<PAGE>
8. Miscellaneous.
a. Severability. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid or
unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or
circumstances, other than the party as to which it is held invalid, and the
remainder of this Agreement, shall not be affected.
b. Capacity. The covenants contained herein shall apply to Shareholder
solely in his or her capacity as a shareholder of the Company, and no
covenant contained herein shall apply to Shareholder in his or her capacity
as a director of the Company.
c. Counterparts. 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. Headings. 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.
e. Choice of Law. 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, without reference to its conflicts of law
principles.
f. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
ZIONS BANCORPORATION
By:
------------------------------------
Name: Dale M. Gibbons
Title: Chief Financial Officer
------------------------------------
(Print or type name)
------------------------------------
(Signature)
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<PAGE>
ANNEX I
Number of Shares of Company Common Stock
Beneficially Owned, as of April __,
1999 (including shares issuable
upon exercise of options or
warrants that are exercisable
within sixty (60) days of the date
hereof): ------------------------------
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