<PAGE>
As filed with the Securities and Exchange Commission on May 19, 1998.
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------------
FIRST INTERSTATE BANCSYSTEM, INC.
(Exact Name of Registrant as Specified in its Charter)
---------------------------
MONTANA 81-0331430
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
401 NORTH 31ST STREET
BILLINGS, MONTANA 59101
(Address of Principal Executive Offices) (Zip Code)
---------------------------
SAVINGS AND PROFIT SHARING PLAN FOR EMPLOYEES OF FIRST INTERSTATE BANCSYSTEM,
INC., AS AMENDED AND RESTATED,
FIRST INTERSTATE BANCSYSTEM, INC. STOCK OPTION AND STOCK APPRECIATION RIGHTS
PLAN, AS AMENDED, AND
FIRST INTERSTATE BANCSYSTEM, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
---------------------------
Terrill R. Moore
Senior Vice President and Chief Financial Officer
FIRST INTERSTATE BANCSYSTEM, INC.
401 North 31st Street
Billings, Montana 59101
(Name and Address of Agent for Service)
(406) 255-5300
(Telephone Number, Including Area Code, of Agent for Service)
---------------------------
With Copy to:
Holland & Hart LLP
215 South State Street, Suite 500
Salt Lake City, UT 84111-2346
(801) 595-7800
ATTENTION: DAVID G. ANGERBAUER, ESQ.
- -------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of to be Price Per Offering Registration
Securities to be Registered(1) Registered(2) Share(3) Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value. . . . . . . . 500,000 $27.50 $13,750,000 $4,057
TOTAL . . . . . . . . . . . . . 500,000 $27.50 $13,750,000 $4,057
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
1. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement shall also cover any
additional shares of the Registrant's Common Stock, no par value, which are
issued or become issuable under the First Interstate BancSystem, Inc. Stock
Option and Stock Appreciation Rights Plan, as amended, the Savings and Profit
Sharing Plan for Employees of First Interstate BancSystem, Inc., as amended
and restated, and the First Interstate BancSystem, Inc. Employee Stock
Purchase Plan to prevent dilution resulting from any stock dividend, stock
split, recapitalization or other similar transaction.
2 In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Savings and Profit Sharing Plan for Employees
of First Interstate BancSystem, Inc., as amended and restated, described
herein.
3 Calculated in accordance with Rule 457(h) under the Securities Act,
based upon the weighted average exercise price of $15.36 per share for
135,280 shares of Common Stock which may be issued in connection with
outstanding but unexercised options under the First Interstate BancSystem,
Inc. Stock Option and Stock Appreciation Rights Plan, as amended; and based
upon the latest appraised value of $32.00 per share for 364,720 shares
reserved for issuance under the First Interstate BancSystem, Inc. Stock
Option and Stock Appreciation Rights Plan, as amended, the Savings and Profit
Sharing Plan for Employees of First Interstate BancSystem, Inc., as amended
and restated, and the First Interstate BancSystem, Inc. Employee Stock
Purchase Plan.
2
<PAGE>
PART II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by First Interstate BancSystem, Inc. (the
"Registrant") and the Savings and Profit Sharing Plan for Employees of First
Interstate BancSystem, Inc., as amended and restated (the "Savings Plan"),
with the Securities and Exchange Commission are hereby incorporated by
reference in this Registration Statement:
(a) The Registrant's latest Annual Report, filed pursuant to Section
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on Form 10-K, for the fiscal year ended December 31, 1997.
(b) The Savings Plan's latest Annual Report, filed pursuant to Section
15(d) of the Exchange Act, on Form 11-K, for the fiscal year ended December
31, 1996.
(c) The Registrant's Quarterly Report on Form 10-Q for the three months
ended March 31, 1998.
(d) All documents filed subsequent hereto by the Registrant and the
Savings Plan, pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities
then remaining unsold.
The consolidated financial statements of the Registrant as of December
31, 1997 and 1996, and for each of the years in the three-year period ended
December 31, 1997, that are included in the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997, incorporated by reference in
this Registration Statement, and the financial statements of the Savings Plan
as of and for the year ended December 31, 1996, that are included in the
Savings Plan's Annual Report on Form 11-K for the year ended December 31,
1996, incorporated by reference in this Registration Statement, have been
audited by KPMG Peat Marwick LLP, independent certified public accountants,
as stated in their reports, which are incorporated herein by reference. Such
financial statements are incorporated herein in reliance upon the reports of
KPMG Peat Marwick LLP, incorporated by reference herein, pertaining to such
financial statements and upon the authority of such firm as experts in
accounting and auditing.
Item 4. DESCRIPTION OF SECURITIES.
The authorized capital stock of the Registrant consists of 20,000,000
shares of common stock without par value (the "Common Stock"), of which
8,021,906 shares were outstanding as of March 31, 1998, and 100,000 shares of
preferred stock without par value, none of which were outstanding as of March
31, 1998.
COMMON STOCK
Each share of the Common Stock is entitled to one vote in the election
of directors and in all other matters submitted to a vote of shareholders.
Accordingly, holders of a majority of the shares of Common Stock entitled to
vote in any election of directors may elect all of the directors standing for
election if they choose to do so, subject to the rights of the holders of the
preferred stock. Voting for directors is noncumulative.
3
<PAGE>
Subject to the preferential rights of any preferred stock that may at
the time be outstanding, each share of Common Stock has an equal and ratable
right to receive dividends when, if and as declared by the Board of Directors
out of assets legally available therefor. In the event of a liquidation,
dissolution or winding up of the Registrant, the holders of Common Stock will
be entitled to share equally and ratably in the assets available for
distribution after payments to creditors and to the holders of any preferred
stock that may at the time be outstanding. Holders of Common Stock have no
conversion rights or preemptive or other rights to subscribe for any
additional shares of Common Stock or for other securities. All outstanding
Common Stock is fully paid and non-assessable.
The Common Stock of the Registrant is not actively traded, and there is
no established trading market for the stock. There is only one class of
Common Stock, with approximately 93% of the shares subject to contractual
transfer restrictions set forth in shareholder agreements (as described
below) and approximately 7% held by 13 shareholders without such
restrictions. The Registrant has the right of first refusal to purchase the
restricted stock at the minority appraised value per share based on the most
recent quarterly appraisal available to the Registrant. All stock not
subject to such restrictions may be sold at a price per share that is
acceptable to the shareholder.
The appraised minority value of the Common Stock represents the
estimated fair market valuation of a minority block of such stock, taking
into account adjustments for the lack of marketability of the stock and other
factors. This value does not represent an actual trading price between a
willing buyer and seller of the Common Stock in an informed, arm's-length
transaction. As such, the appraised minority value is only an estimate as of
a specific date, and there can be no assurance that such appraisal is an
indication of the actual value holders of the Common Stock may realize with
respect to shares held by them. Moreover, the estimated fair market value of
the Common Stock may be materially different at any date other than the
valuation dates indicated above.
Resale of the Common Stock may be restricted pursuant to the Securities
Act of 1933, as amended, and applicable state securities laws. In addition,
most shares of the Common Stock are subject to one of two shareholders'
agreements. Members of the Scott family, as majority shareholders of the
Registrant, are subject to a shareholder's agreement ("Scott Agreement").
The Scott family, under the Scott Agreement, has agreed to limit the transfer
of shares owned by members of the Scott family to family members or
charities, or with the Registrant's approval, to the Registrant's officers,
directors, advisory directors, or to the Savings Plan.
Shareholders of the Registrant who are not Scott family members, with
the exception of 13 shareholders who own an aggregate of approximately
600,000 shares of unrestricted stock, are subject to a different form of
shareholder's agreement ("Shareholder's Agreement"). The Shareholder's
Agreement grants the Registrant the option to purchase Common Stock in any of
the following events: 1) the shareholder's intention to sell the stock, 2)
the shareholder's death, 3) transfer of the stock by operation of law, 4)
termination of the shareholder's status as a director, officer or employee of
the Registrant, and 5) total disability of the shareholder. Stock subject to
the Shareholder's Agreement may not be sold or transferred by the shareholder
without triggering the Registrant's option to acquire the stock in accordance
with the terms of the Shareholder's Agreement. In addition, the
Shareholder's Agreement allows the Registrant to repurchase any of the Common
Stock acquired by the shareholder after January 1, 1994 if the Registrant
determines that the number of shares owned by the shareholder is excessive in
view of a number of factors including but not limited to (a) the relative
contribution of
4
<PAGE>
the shareholder to the economic performance of the Registrant, (b) the effort
being put forth by the shareholder, and (c) the level of responsibility of
the shareholder.
Purchases of the Common Stock made through the Savings Plan are not
restricted by the Shareholder's Agreement, due to requirements of ERISA and
the Internal Revenue Code. However, since the Savings Plan does not allow
distributions "in kind," any distributions from an employee's account in the
Savings Plan will allow, and may require, the Savings Plan trustee to sell
the Common Stock. While the Registrant has no obligation to repurchase the
Common Stock, it is possible that the Registrant will repurchase the Common
Stock sold out of the Savings Plan. Any such repurchases would be upon terms
set by the Savings Plan trustee and accepted by the Registrant.
The Savings Plan, which owns shares of Common Stock, is administered by
the Trust Department of First Interstate Bank in Montana ("FIB Montana") a
subsidiary of the Registrant, which votes the shares based on the
instructions of each participant therein. In the event such participant does
not provide the Savings Plan Trustee with instructions, such Trustee will
vote those shares in accordance with voting instructions received from a
majority of the participants in the Savings Plan.
DIVIDENDS
It is the policy of the Registrant to pay a dividend to all holders of the
Common Stock on a quarterly basis. Dividends are declared and paid in the
month following the calendar quarter and the amount has historically been
determined based upon a percentage of net income for the calendar quarter
immediately preceding the dividend payment date. Effective with the dividend
for the fourth quarter of 1995 paid in January 1996, the dividend has been
30% of quarterly net income. The Board of Directors of the Registrant has no
current intention to change its dividend policy, but no assurance can be
given that the Board may not, in the future, change or eliminate the payment
of dividends.
DIVIDEND RESTRICTIONS
The holders of Common Stock will be entitled to dividends when, as and if
declared by the Registrant's Board of Directors out of funds legally
available therefor. As a holding company, the Registrant is a corporation
separate and apart from its bank subsidiaries, FIB Montana and First
Interstate Bank in Wyoming (together, the "Banks"). The Registrant's ability
to pay dividends to its stockholders is dependent upon the cash dividends and
interest payments received by the Registrant from the Banks. Dividend and
interest payments from the Banks are subject to federal and state banking
limitations, generally based on current and retained earnings, imposed by the
various federal and state regulatory agencies with authority over the
respective Banks. Payment of dividends by the Banks is also subject to each
respective Bank's profitability, financial condition, capital expenditures
and cash flow requirements. Payment of dividends and interest may also be
restricted by applicable banking regulations if such dividends or interest
would impair the capital of the respective Banks or constitute an "unsafe or
unsound" practice. In addition, there are restrictions and financial
covenants in the Registrant's debt instruments which may prohibit the payment
of dividends from the Banks to the Registrant and from the Registrant to its
stockholders in certain circumstances.
5
<PAGE>
PREFERRED STOCK
The authorized capital stock of the Registrant includes 100,000 shares
of preferred stock. The Registrant's Board of Directors is authorized,
without approval of the holders of the Common Stock, to provide for the
issuance of preferred stock from time to time in one or more series in such
number and with such designations, preferences, powers and other special
rights as may be stated in the resolution or resolutions providing for such
preferred stock. The Registrant's Board of Directors may cause the
Registrant to issue preferred stock with voting, conversion and other rights
that could adversely affect the holders of the Common Stock to make it more
difficult to effect a change in control of the Registrant.
In the event of any dissolution, liquidation or winding up of the
affairs of the Registrant, before any distribution or payment may be made to
the holders of the Common Stock, the holders of preferred stock would be
entitled to be paid in full with the respective amounts fixed by the
Registrant's Board of Directors in the resolution or resolutions authorizing
the issuance of such series, together with a sum equal to the accrued and
unpaid dividends thereon to the date fixed for such distribution or payment.
After payment in full of the amount which the holders of preferred stock are
entitled to receive, the remaining assets of the Registrant would be
distributed ratably to the holders of the Common Stock. If the assets
available are not sufficient to pay in full the amount so payable to the
holders of all outstanding preferred stock, the holders of all series of such
shares would share ratably in any distribution of assets in proportion to the
full amounts to which they would otherwise be respectively entitled. The
consolidation or merger of the Registrant into or with any other corporation
or corporations would not be deemed a liquidation, dissolution, or winding up
of the affairs of the Registrant.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Officers and directors of the Registrant are entitled to indemnification
under the Montana Business Corporation Act and pursuant to a Resolution of
the Board of Directors of the Registrant dated January 12, 1987. A summary
of the indemnification provision in such resolution follows:
Pursuant to a resolution of the Board of Directors dated January 12,
1987, and under the authority of Section 35-1-414 of the Montana Business
Corporation Act, the Registrant shall indemnify each director and officer of
the Registrant (including former officers and directors) and each agent of
the Registrant serving as a director or officer of a Bank, serving at the
specific direction or request of the Registrant (but only to the extent that
such director, officer or agent is not indemnified by the Bank or by
insurance provided by the Registrant) against judgments, penalties, fines,
settlements and reasonable expenses actually and reasonably paid by such
director, officer or agent by reason of the fact that he or she is or was a
director or officer of the Registrant or such Bank, to the extent provided by
and subject to the limitations of the Montana Business Corporation Act.
Officers and directors of the Registrant are also entitled to
indemnification under the Registrant's Bylaws, a copy of which is included as
an exhibit hereto.
6
<PAGE>
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8.
1. EXHIBITS.
Regulation S-K
- --------------
Exhibit Document
------- --------
4.1(1) Restated Articles of Incorporation of the Registrant dated
February 27, 1986
4.2(2) Articles of Amendment to Restated Articles of Incorporation of
the Registrant dated September 19, 1996
4.3(2) Articles of Amendment to Restated Articles of Incorporation of
the Registrant dated September 19, 1996
4.4(3) Articles of Amendment to Restated Articles of Incorporation of
the Registrant dated October 7, 1997
4.5(4) Bylaws of the Registrant
4.6(5) Specimen of common stock certificate of First Interstate
BancSystem, Inc.
4.7 Shareholder's Agreement for non-Scott family members
4.8(6) Savings and Profit Sharing Plan for Employees of the
Registrant, as amended December 31, 1994
4.9(4) Amendment to the Savings and Profit Sharing Plan for Employees
of the Registrant, adopted September 21, 1995
4.10(4) First Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated December 20, 1995
4.11(4) Second Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated July 18, 1996
4.12(4) Third Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated September 19, 1996
7
<PAGE>
4.13(4) Fourth Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated January 16, 1997
4.14(3) Fifth Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated September 18, 1997
4.15(1) Stock Option and Stock Appreciation Rights Plan of the
Registrant, as amended
4.16 Employee Stock Purchase Plan of the Registrant, dated May 1,
1998
4.17(1) First Interstate Stockholders' Agreements with Scott family
members
4.18(6) Amendment to First Interstate Stockholders' Agreement with
Scott family members dated September 7, 1995
5 Opinion of Holland & Hart LLP, as to the legality of securities
being registered.
23.1 Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants.
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5).
24 Power of Attorney (included on page 10 of this Registration
Statement)
- -----------------------
1 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 33-84540.
2 Incorporated by reference to the Registrant's Form 8-K dated October 1,
1996.
3 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-37847.
4 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-25633.
5 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-3250.
6 Incorporated by reference to the Post-Effective Amendment No. 2 to the
Registrant's Registration Statement on Form S-1, No. 33-84540.
8
<PAGE>
2. SAVINGS PLAN UNDERTAKING
The Registrant has submitted the Savings Plan, including all amendments
thereto, to the Internal Revenue Service ("IRS") and has made all changes, if
any, required by the IRS in order to qualify the Savings Plan under the
requirements of the Employee Retirement Income Security Act of 1974, as amended.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(3) 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act and each filing of the Savings Plan's annual report pursuant to
Section 15(d) of the Exchange Act that is incorporated by reference in this
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant 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, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
9
<PAGE>
SIGNATURES
1. REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the
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 Billings, State of Montana, on
May 18, 1998.
First Interstate BancSystem, Inc.
/s/ Thomas W. Scott
-------------------------------------
Thomas W. Scott
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS by these presents that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints
Thomas W. Scott and Terrill R. Moore, and each of them, as his true and
lawful attorney-in-fact and agent, with full power of substitution, to sign
on his behalf individually and in the capacity stated below, and to perform
any acts necessary to be done in order to file all amendments and
post-effective amendments to this Registration Statement, and any and all
instruments or documents filed as part of or in connection with this
Registration Statement or the amendments thereto and each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact and agent, or
his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons in the
capacities indicated on May 18, 1998:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Homer A. Scott, Jr. Chairman of the Board
- ------------------------------
Homer A. Scott, Jr.
/s/ Dan S. Scott Director
- ------------------------------
Dan S. Scott
/s/ James R. Scott Vice Chairman of the Board
- ------------------------------
James R. Scott
/s/ Randy Scott Director
- ------------------------------
Randy Scott
/s/ John M. Heyneman Director
- ------------------------------
John M. Heyneman
/s/ Joel Long Director
- ------------------------------
Joel Long
10
<PAGE>
/s/ James Haugh Director
- ------------------------------
James Haugh
/s/ Thomas W. Scott President, Chief Executive Officer and Director
- ------------------------------ (PRINCIPAL EXECUTIVE OFFICER)
Thomas W. Scott
/s/ Terrill R. Moore Senior Vice President, Chief Financial Officer and Secretary
- ------------------------------ (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
Terrill R. Moore
</TABLE>
2. SAVINGS AND PROFIT SHARING PLAN FOR EMPLOYEES OF FIRST INTERSTATE
BANCSYSTEM, INC., AS AMENDED AND RESTATED
Pursuant to the requirements of the Securities Act of 1933, the trustee
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Billings, State of
Montana, on May 18, 1998.
Savings and Profit Sharing Plan for
Employees of First Interstate BancSystem,
Inc., as amended and restated
/s/ Richard C. Fellows
----------------------------------
By: Richard C. Fellows
Its: Trustee
11
<PAGE>
FIRST INTERSTATE BANCSYSTEM, INC.
EXHIBIT INDEX
Regulation S-K
- --------------
Exhibit Document
------- --------
4.1(1) Restated Articles of Incorporation of the Registrant dated
February 27, 1986
4.2(2) Articles of Amendment to Restated Articles of Incorporation of
the Registrant dated September 19, 1996
4.3(2) Articles of Amendment to Restated Articles of Incorporation of
the Registrant dated September 19, 1996
4.4(3) Articles of Amendment to Restated Articles of Incorporation of
the Registrant dated October 7, 1997
4.5(4) Bylaws of the Registrant
4.6(5) Specimen of common stock certificate of First Interstate
BancSystem, Inc.
4.7 Shareholder's Agreement for non-Scott family members
4.8(6) Savings and Profit Sharing Plan for Employees of the Registrant,
as amended December 31, 1994
4.9(4) Amendment to the Savings and Profit Sharing Plan for Employees
of the Registrant, adopted September 21, 1995
4.10(4) First Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated December 20, 1995
4.11(4) Second Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated July 18, 1996
4.12(4) Third Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated September 19, 1996
4.13(4) Fourth Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated January 16, 1997
12
<PAGE>
4.14(3) Fifth Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated September 18, 1997
4.15(1) Stock Option and Stock Appreciation Rights Plan of the
Registrant, as amended
4.16 Employee Stock Purchase Plan of the Registrant, dated May 1,
1998
4.17(1) First Interstate Stockholders' Agreements with Scott family
members
4.18(6) Amendment to First Interstate Stockholders' Agreement with Scott
family members dated September 7, 1995
5 Opinion of Holland & Hart LLP, as to the legality of securities
being registered.
23.1 Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants.
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5).
24 Power of Attorney (included on page 10 of this Registration
Statement)
- ---------------------------
1 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 33-84540.
2 Incorporated by reference to the Registrant's Form 8-K dated October 1,
1996.
3 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-37847.
4 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-25633.
5 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-3250.
6 Incorporated by reference to the Post-Effective Amendment No. 2 to the
Registrant's Registration Statement on Form S-1, No. 33-84540.
13
<PAGE>
SHAREHOLDER'S AGREEMENT
THIS AGREEMENT is made this _____ day of _________, 1998, by and between
_____________, herein referred to as "Shareholder", and FIRST INTERSTATE
BANCSYSTEM, INC., a Montana corporation, 401 North 31st Street, Billings,
Montana 59101, herein referred to as the "Corporation".
W I T N E S S E T H :
A. Shareholder owns shares of capital stock of the Corporation, which
stock, together with any additional stock hereafter acquired by Shareholder,
is herein referred to as the "Shares".
B. The Corporation desires to restrict the issuance and holding of its
corporate stock to officers, directors and employees of the Corporation or
any of its subsidiaries, or to fiduciaries for the benefit of any such
persons, or to charities. Such persons' status as director, officer or
employee of the Corporation shall be herein referred to as the "Shareholders'
Relationship with the Corporation". This Shareholder's Agreement does not
apply to the Corporation's stock held in the Savings Plan.
C. The Corporation and Shareholder desire to obligate each other to
sell and purchase shares under specified circumstances.
NOW, THEREFORE, in consideration of the above facts and the
Shareholder's and the Corporation's mutual promises herein, the Shareholder
and the Corporation agree as follows:
1. RESTRICTION ON TRANSFER OR PLEDGE OF SHARES. Except as otherwise
provided in this Agreement or as agreed upon in writing by the Shareholder
and the Corporation, Shareholder shall not transfer or permit to be
transferred, whether voluntarily, involuntarily or by operation of law,
resulting from death or otherwise, any or all of the Shares now owned or
hereafter acquired by Shareholder, and any attempted transfer in violation of
this Agreement shall be void. Shareholder shall not encumber or use any
Shares as security for a loan, except upon the written consent of the
Corporation.
2. TRANSFER OF SHARES TO CHARITY. A Shareholder may transfer Shares to
any organization described in Section 170(b)(1)(A) of the Internal Revenue
Code of 1986, as now or hereafter amended (the "Code"), a gift to which
qualifies as a charitable deduction under Sections 170(c), 2055(a), or
2522(a) of the Code (a "Charity"). Any transfer of Shares to a Charity shall
be subject to the Corporation's option, exercisable by action of the Board of
Directors of the Corporation, to purchase all or any portion of the Shares
held by a Charity at the purchase price set forth in this Agreement, which
may be exercised by written notice from the Corporation to the Charity at any
time.
3. PURCHASE OPTION UPON BONA FIDE SALE. If a Shareholder intends to
sell any Shares to any person other than the Corporation, Shareholder shall
give ninety (90) days' written notice to the Corporation of the intention to
sell Shares. The notice, in addition to stating the fact of the intention to
sell Shares, shall state (i) the
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number of Shares to be sold, (ii) the name and address of the proposed
purchaser, (iii) the amount of the consideration and the other terms of the
sale. At the request of the Corporation, Shareholder shall demonstrate to
the reasonable satisfaction of the Corporation that the intended sale is bona
fide. Within ninety (90) days after the Corporation's receipt of the notice
of intention to sell Shares, the Corporation may exercise an option to
purchase all but not less than all of the Shares proposed to be sold.
4. PURCHASE OPTION UPON DEATH. Upon Shareholder's death, the
Corporation, within ninety (90) days after the appointment of a personal
representative for the deceased Shareholder's estate, for which written
notice must be given by said personal representative within ten (10) days
after appointment, may exercise an option to purchase all but not less than
all of the deceased Shareholder's Shares from the personal representative of
his or her estate. Shareholder, by signing this Agreement, directs his or her
personal representatives to open Shareholder's estate promptly in the court
of proper jurisdiction and execute, procure and deliver all documents,
including, but not limited to appropriate order of such court and estate and
inheritance tax waivers, as shall be required to effectuate the purposes of
this Agreement.
5. PURCHASE OPTION UPON INVOLUNTARY TRANSFER. If other than by reason
of Shareholder's death, Shares are transferred by operation of law to any
person other than the Corporation (such as but not limited to a shareholder's
trustee in bankruptcy, a purchaser at any creditor's or court sale or the
guardian or conservator of an incompetent shareholder), Shareholder shall
immediately give written notice to the Corporation of such transfer. The
Corporation, within ninety (90) days of the Corporation's receipt of actual
notice of the transfer, may exercise an option to purchase all but not less
than all of the Shares so transferred from the transferee of the Shares. Any
transfer of the Shares by operation of law shall be subject to this right and
option of the Corporation to purchase the Shares.
6. PURCHASE OPTION UPON TERMINATION OF RELATIONSHIP WITH THE
CORPORATION. Upon the termination of Shareholder's Relationship with the
Corporation, such termination being for any reason whatsoever, including but
not limited to the voluntary resignation of Shareholder, the Corporation,
within ninety (90) days after the date of such termination, may exercise an
option to purchase all but not less than all of the Shares owned by the
terminated Shareholder at the time of such termination.
7. PURCHASE OPTION UPON DISABILITY. If Shareholder shall become totally
disabled, the Corporation, within ninety (90) days after the date of such
total disability, may exercise an option to purchase all but not less than
all of the Shares owned by the disabled Shareholder at the time of the
commencement of his or her total disability. A shareholder shall be deemed
totally disabled within the meaning of this paragraph 7 if as a result of
sickness, accident or injury, he or she becomes wholly and continuously
unable to perform his or her duties for a period of six consecutive months,
and his or her disability shall be deemed to have commenced at the end of
said six-month period.
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8. GENERAL CORPORATE PURCHASE OPTION. Upon determination by the
Corporation's Board of Directors that the number of Shares held by
Shareholder is excessive in view of the Corporation's policy that the level
of a shareholder's stock ownership should reflect certain factors, including
but not limited to (a) the relative contribution of Shareholder to the
economic performance of the Corporation, (b) the effort being put forth by
Shareholder, and (c) the level of responsibility of Shareholder, the
Corporation may exercise an option to purchase a portion of Shareholder's
Shares sufficient to decrease the number of Shares owned by the Shareholder
to an amount that the Board of Directors, in its sole discretion, believes is
appropriate. The Corporation shall not exercise said option in anticipation
of a sale of the Corporation or a majority of the Corporation's stock and the
Corporation agrees to exercise said option in a nondiscriminatory fashion.
The number of Shares that the Corporation can purchase from Shareholder is
limited to the stock obtained by the Shareholder after January 1, 1994.
9. EXERCISE OF OPTION. The Corporation shall exercise any of the Options
granted in paragraphs 3, 4, 5, 6, or 7 by delivering written notice of its
exercise of the option, within the time provided in the applicable paragraph,
to the Shareholder in the case of a paragraph 3 option, to the personal
representative of Shareholder's estate in the case of a paragraph 4 option,
to the transferee in the case of a paragraph 5 option, to the terminated
Shareholder in the case of a paragraph 6 option, and to the disabled
shareholder in the case of a paragraph 7 option. The Corporation shall
exercise the option granted in paragraph 8 by delivering written notice of
its exercise of the option, specifying the number of Shares to be purchased,
to the Shareholder.
10. EFFECT OF NON-EXERCISE OF OPTIONS. If the purchase options are
forfeited or not exercised in compliance with the terms of this Agreement,
then the Shares to which the option applied shall be unrestricted and no
longer subject to the terms of this Agreement.
11. THE PURCHASE PRICE. The purchase price for each Share purchased
pursuant to any of the options granted in this Agreement shall be the
appraised value of a minority Share as stated in the most recent quarterly
appraisal available to the Corporation. The Corporation's Shares shall be
appraised as of the last day of each calendar quarter by an unaffiliated firm
qualified to make such an appraisal, as determined by the Corporation's Board
of Directors. The expense of determining the appraised value shall be borne
by the Corporation. The appraisal of the Shares delivered to any department
division or subsidiary of the Corporation may be utilized under this
paragraph.
The Corporation may, at its option, withhold any amount that the
Shareholder owes the Corporation or its subsidiaries from the amount of the
Purchase Price payable to Shareholder and apply said amount to such
indebtedness.
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12. PAYMENT OF THE PURCHASE PRICE.
12.1 PAYMENT TERMS. The purchase price for Shares to be purchased by
the Corporation pursuant to this Agreement shall be paid either in cash at
closing or, at Shareholder's (including the personal representative of a
deceased Shareholder) election, in installments as follows:
(a) 25% of the purchase price at the closing.
(b) The balance of the purchase price in three (3) annual equal
payments of principal plus accrued interest thereon at a fixed
annual rate equal to the 5 year Treasury Note rate at the date
of closing plus one percent, the first installment to be paid one
year after the closing, and the remaining installments each year
thereafter.
The purchase price pursuant to exercise of the paragraph 5 option shall be
paid in full in cash at the closing.
12.2 PROMISSORY NOTE ON DEFERRED PORTION. The deferred portion of the
purchase price, if any, shall be evidenced by the promissory note of the
Corporation made payable to the order of the Shareholder. The Corporation
note shall be substantially in the form of that set forth in Exhibit A.
13. THE CLOSING.
13.1 TIME AND PLACE. Unless otherwise agreed by the parties, the
closing of the sale and purchase of Shares, as provided in this Agreement,
shall take place at the general offices of the Corporation. In the case of a
purchase of Shares from a deceased Shareholder's estate under paragraph 4,
the closing shall take place within one hundred twenty (120) days after the
appointment of a personal representative for the deceased Shareholder's
estate. In the case of a purchase of Shares under paragraphs 3, 5, 6, 7, or
8, the closing shall take place ten (10) days after the delivery to the
Shareholder of written notice by the Corporation of its exercise of the
option to purchase the Shareholder's Shares.
13.2 DOCUMENTS. At the closing of the sale and purchase, the
Shareholder and the Corporation shall execute and immediately deliver to each
other the various documents which shall be required to carry out their
undertakings hereunder, including but not limited to the payment of cash, the
execution and delivery of notes and the assignment and delivery of stock
certificates free and clear of all taxes, debts, claims, judgments, liens or
encumbrances whatsoever.
14. LEGEND ON CERTIFICATES. All Shares now or hereafter owned by
Shareholder shall be subject to the provisions of this Agreement and
Shareholder, and his or her transferee or successor agrees that the
certificates representing same shall bear the following legend reciting the
existence of the Agreement:
The sale, transfer or encumbrance of this certificate is subject to an
agreement to restrict transfer or acquisition of the shares. A copy of the
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agreement is on file in the office of the secretary of the
Corporation. Any transfer or acquisition in violation of the agreement
is null and void.
Upon the execution of this Agreement, Shareholders shall immediately
temporarily surrender his or her stock certificates to the Corporation and
the Corporation shall cause the above legend to be placed thereupon before
returning the certificates.
15. REISSUED SHARES. The Corporation shall have the right to substitute
or reissue stock in exchange for the Shares in the event of a stock split,
merger, consolidation, name change, sale, spin off, share exchange, or other
corporate reorganization. Substituted or reissued stock shall be subject to
the terms of this Agreement.
16. TERMINATION.
16.1 EVENTS CAUSING TERMINATION. This Agreement and all restrictions on
stock transfer created hereby shall be effective as of the date hereof and
shall terminate on the occurrence of the bankruptcy, receivership or
dissolution of the Corporation, on the public trading of the Shares, or on
the execution of a written instrument by the Corporation and the party or
parties who then own Shares subject to this Agreement which terminates the
same.
16.2 SURVIVAL OF RIGHTS AND REMEDIES. The termination of this Agreement
for any reason shall not affect any right or remedy existing hereunder prior
to the effective date of termination hereof.
17. GENERAL PROVISIONS.
17.1 REMEDIES. The parties agree that they will not have an adequate
remedy at law for the breach of this Agreement because, among other reasons,
the Shares cannot readily be purchased or sold on the open market. The
parties shall have available for any breach of this Agreement the remedies of
specific performance and injunctive relief, together with all other remedies
at law or in equity. No waiver of or forbearance to enforce any right or
provision hereof shall be binding unless in writing and signed by the party
to be bound, and no such waiver or forbearance in any instance shall apply to
any other instance or any other right or provision.
17.2 MODIFICATION OR TERMINATION. This Agreement may not be modified or
terminated orally, and no modification, termination, or amendment shall be
valid unless in writing signed by all parties hereto.
17.3 GOVERNING LAW. This Agreement shall be governed for all purposes
by the laws of the State of Montana.
17.4 SEVERABILITY. Each term and provision of this Agreement is
intended to be enforced to the maximum extent permitted by applicable law.
If any term or provision of this Agreement or the applicability thereof to
any person or circumstances shall to any extent be invalid or unenforceable,
the remainder of this Agreement, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby and shall continue in full
force and effect.
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17.5 NOTICES. All notices provided for by this Agreement shall be made
in writing and shall be given either: (1) by actual delivery of the notice to
the party entitled thereto; or (2) by mailing the notice in the U.S. mails,
certified mail, return receipt requested to the last known address of the
party entitled thereto. The notice shall be deemed to be received in case
(1), on the date of its actual receipt by a party and in case (2), on the
date of its mailing. Any notice to be given by Shareholder shall be given on
the form of notice attached hereto as Exhibit B.
17.6 BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the Corporation and the Shareholder and their respective heirs,
personal representatives, successors and assigns.
17.7 TIME. Time shall be of the essence of this Agreement.
17.8 HEADINGS. The headings used herein are for convenience only, and
shall not be construed as a part of this Agreement or as a limitation on the
scope of the particular paragraphs to which they refer.
17.9 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties, and supersedes any and all prior negotiations
and understandings.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth on page 1.
FIRST INTERSTATE BANCSYSTEM, INC.
By ______________________________
Terrill R. Moore, Secretary
"Corporation"
____________________________
"Shareholder"
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EXHIBIT A
$_____________ (Date)
-----------------
Billings, Montana
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
_____ ______, at _________________, or such other place as is designated from
time to time by the holder of this note, in lawful money of the United
States, the sum of ________________________________________________________
($_________) in the following manner:
$_________ (including principal and interest) on ________, ____, and a
like sum on the same day of each succeeding year thereafter until the
full amount due hereunder has been paid.
Each payment shall be applied first to accrued interest on the entire
outstanding principal balance from time to time at the rate of ____% per
annum from the date hereof and then to principal. The undersigned may
not make advance payments on principal.
Any installment of principal or interest payable hereunder, or any part
thereof, which is not paid when due, shall thereafter bear interest at the
rate equal to six percent (6%) over the interest rate stated above.
If any payment due hereunder remains unpaid for more than thirty (30)
days after it is due, the holder hereof may, at its option, declare the
entire unpaid balance of principal and interest hereunder to be immediately
due and payable.
Waiver by the holder hereof of any default by the undersigned shall not
constitute a waiver by the holder of a subsequent default. Failure by the
holder to exercise any right, power or privileges which it may have by reason
of a default by the undersigned shall not preclude the exercise of such
right, power or privilege so long as such default remains uncured or if a
subsequent default occurs.
The undersigned agrees to pay all costs of collection, including a
reasonable attorney's fee, if this note is placed in the hands of an attorney
for collection after default, and hereby waives demand, presentment for
payment, protest, notice of protest, and notice of dishonor.
Words used in the singular herein shall include the plural.
FIRST INTERSTATE BANCSYSTEM, INC.
By:
--------------------------------
Its:
--------------------------------
<PAGE>
EXHIBIT B
NOTICE
To: First Interstate BancSystem, Inc.
401 North 31st Street
Billings, MT 59101
Pursuant to the Shareholder's Agreement between
________________________ ("Shareholder") and First Interstate BancSystem,
Inc. ("Corporation") dated ______________, the undersigned hereby gives
notice of:
(Check One)
_____ The undersigned shareholder's intention to sell Shares as follows:
- Number of Shares: ____________
- Proposed Purchaser
and Address: __________________________
__________________________
__________________________
- Consideration: __________________________
- Terms of Sale: __________________________
_____ The appointment of the undersigned as personal representative of
Shareholder's Estate on __________________________. A true and correct copy
of the personal representative letters issued to the undersigned is attached
hereto.
_____ The involuntary transfer of Shareholder's Shares
Dated: ______________________________________
__________________________________
<PAGE>
ADDENDUM TO SHAREHOLDER'S AGREEMENT DATED , BETWEEN
, SHAREHOLDER, AND FIRST INTERSTATE
BANCSYSTEM, INC., CORPORATION
THIS AGREEMENT is made this ____ day of _________________, 19__, by and
between _______________________________, herein referred to as "Shareholder",
___________________________, herein referred to as "Fiduciary", and FIRST
INTERSTATE BANCSYSTEM, INC., a Montana corporation, herein referred to as the
"Corporation", as an addendum to the Shareholder's Agreement dated
_______________, by and between Shareholder and the Corporation, herein
referred to as the "Shareholder's Agreement."
W I T N E S S E T H:
A. Shareholder's Shares are held by Fiduciary for the benefit of
Shareholder.
B. Shareholder and the Corporation desire to bind Fiduciary to the
terms and conditions of the Shareholder's Agreement.
NOW, THEREFORE, the parties agree as follows:
1. FIDUCIARY TO BE BOUND BY SHAREHOLDER'S AGREEMENT. The parties
agree that Fiduciary, as custodian of or trustee over Shareholder's Shares,
is bound by the terms and conditions of the Shareholder's Agreement and is
obligated to manage and control said Shares in accordance with the
restrictions and obligations of the Shareholder's Agreement.
2. RATIFICATION OF SHAREHOLDER'S AGREEMENT. The parties agree that
except as modified herein, the terms and conditions of the Shareholder's
Agreement are hereby confirmed and ratified.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
set forth above.
FIRST INTERSTATE BANCSYSTEM, INC.
By: _________________________________
Terrill R. Moore, Secretary
"CORPORATION"
________________________________
"SHAREHOLDER"
By: ____________________________
Its: ___________________________
"FIDUCIARY"
<PAGE>
FIRST INTERSTATE BANCSYSTEM, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE
The purpose of the First Interstate BancSystem, Inc. Employee Stock
Purchase Plan (the "Plan") is to further the growth and development of First
Interstate BancSystem, Inc., a Montana corporation (the "Company"), by
affording an opportunity for stock ownership to selected persons, including
the Savings and Profit Sharing Plan Trustee (as defined below).
SECTION 2. DEFINITIONS
Unless otherwise indicated, the following terms when used herein shall
have the following meanings:
a. "Affiliate" shall mean, with respect to any person or entity,
a person or entity that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such person or entity.
b. "Board of Directors" shall mean the Board of Directors of the
Company.
c. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
d. "Committee" shall have the meaning set forth in Section 4.1
hereof.
e. "Common Stock" shall mean the Company's no par value common
stock, and any share or shares of the Company's capital stock hereafter
issued or issuable in substitution for such shares.
f. "Director" shall mean a member of the Board of Directors, a
member of the board of directors of any bank Subsidiary of the Company, and
advisory directors of the Company or any such Subsidiary.
g. "Offer Letter" shall have the meaning set forth in Section 7.2
hereof.
h. "Offering Period" shall have the meaning set forth in Section
7.6 hereof.
i. "Participant" shall mean any person, including the Savings
Plan Trustee, who is granted a right to purchase Common Stock under the Plan;
provided however, that such person shall be considered a Participant only
during a particular Offering Period, if and when designated by the Board of
Directors or Committee and will
<PAGE>
not be considered a Participant in prior or subsequent Offering Periods
unless designated as such by the Board of Directors or Committee.
"Participant" shall also mean the personal representative of a Participant
and any other person who acquires the right to purchase Common Stock by
bequest or inheritance.
j. "Purchase Price" shall mean the Fair Market Value of the
Common Stock as of the first day of an Offering Period.
k. "Fair Market Value" shall have the meaning set forth in
Section 7.5 hereof.
l. "Savings Plan Trustee" shall mean the person or entity acting
as trustee from time to time of the Company's Savings and Profit Sharing Plan
for Employees of First Interstate BancSystem, Inc., as Amended and Restated.
m. "Stock Sale" shall mean a sale of the Common Stock made by the
Company or certain Affiliates as determined by the Board of Directors or the
Committee from time to time and in accordance with the terms hereof.
n. "Subsidiary" shall mean a subsidiary corporation of the
Company as defined in Section 424(f) of the Code.
SECTION 3. EFFECTIVE DATE
The effective date of the Plan is May 1, 1998.
SECTION 4. ADMINISTRATION
4.1 ADMINISTRATION. The Plan shall be administered by the Board of
Directors or a committee appointed by and serving at the pleasure of the
Board of Directors, consisting of not less than two Directors (the
"Committee"). Subject to the foregoing, the number of Directors comprising
the Committee shall be determined from time to time by the Board of Directors
and may include the total number of Directors serving on the Board of
Directors. Unless otherwise adopted by resolution of the Board of Directors,
the initial Committee shall consist of all members of the Board of Directors.
The Board of Directors may from time to time remove members from or add
members to the Committee, and vacancies on the Committee, howsoever caused,
shall be filled by the Board of Directors. If the Common Stock becomes
registered under Section 12 of the Securities Exchange Act of 1934, as
amended, the Committee shall be composed of Directors satisfying any
applicable requirements of Rule 16b-3 so as to take advantage of the maximum
exemption thereunder.
4.2 COMMITTEE MEETINGS AND ACTIONS. If appointed, the Committee shall
hold meetings at such times and places as it may determine. A majority of
the members of the Committee shall constitute a quorum, and the acts of the
majority of the members present at a meeting or a consent in writing signed
by all members of the Committee shall be the acts of the Committee and shall
be final, binding and conclusive upon all persons,
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including the Company, its Subsidiaries, its shareholders, and all persons
having any interest in Common Stock which may be or has been sold pursuant to
the Plan.
4.3 POWERS OF COMMITTEE. The Committee shall have the full and
exclusive right to administer Stock Sales and to determine the terms and
conditions of all such Stock Sales under the Plan and to prescribe, amend and
rescind rules and regulations for administration of the Plan. The Committee
shall also select those Directors, officers, employees or other persons who
will be eligible to purchase Common Stock in any Stock Sale, and shall
determine the amounts of Common Stock which each such Participant may
purchase in any given Stock Sale, or in the aggregate. In administering
Stock Sales, the Committee shall take into consideration the contribution the
Participant has made or may make to the success of the Company or its
Subsidiaries and such other factors as the Committee shall determine.
4.4 INTERPRETATION OF PLAN. The determination of the Committee as to
any disputed question arising under the Plan, including questions of
construction and interpretation, shall be final, binding and conclusive upon
all persons, including the Company, its Subsidiaries, its shareholders, and
all Participants.
4.5 INDEMNIFICATION. Each person who is or shall have been a member of
the Committee or of the Board of Directors shall be indemnified and held
harmless by the Company against and from any loss, cost, liability or expense
that may be imposed upon or reasonably incurred in connection with or
resulting from any claim, action, suit or proceeding to which such person may
be a party or in which such person may be involved by reason of any action
taken or failure to act under the Plan and against and from any and all
amounts paid in settlement thereof, with the Company's approval, or paid in
satisfaction of a judgment in any such action, suit or proceeding against
him, provided such person shall give the Company an opportunity, at its own
expense, to handle and defend the same before undertaking to handle and
defend it on such person's own behalf. The foregoing right of
indemnification shall not be exclusive of, and is in addition to, any other
rights of indemnification to which any person may be entitled under the
Company's Articles of Incorporation or Bylaws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold
them harmless.
SECTION 5. STOCK SUBJECT TO THE PLAN
5.1 NUMBER. The aggregate number of shares of Common Stock which may
be sold pursuant to Stock Sales hereunder shall be as determined from time to
time by the Board of Directors or the Committee.
5.2 UNUSED STOCK. If any shares of Common Stock made available for
sale pursuant to a Stock Sale shall not be sold during an Offering Period,
such unused shares of Common Stock shall not continue to be available under
the Plan unless and until the Board of Directors or the Committee shall
establish a new Offering Period with respect to a new Stock Sale.
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<PAGE>
5.3 ADJUSTMENT FOR CHANGE IN OUTSTANDING SHARES. If there is any
change, increase or decrease, in the outstanding shares of Common Stock which
is effected without receipt of additional consideration by the Company, by
reason of a stock dividend, recapitalization, merger, consolidation, stock
split, combination or exchange of stock, or other similar circumstances
during an Offering Period, then in each such event, appropriate adjustments
with respect to the aggregate number of shares of Common Stock available
under the Plan for such Offering Period and the Purchase Price related
thereto shall be deemed to be made in order to prevent the dilution or
enlargement of any Participant's right to purchase a certain number of shares
of Common Stock. In connection with such adjustment or adjustments,
fractional shares shall be rounded to the nearest whole share. Any Committee
determination confirming or approving any adjustments shall be final and
conclusive.
SECTION 6. ELIGIBILITY
All full-time and part-time employees of the Company and its
Subsidiaries, all Directors, the Savings Plan Trustee and other persons may
be eligible, if, as and when determined by the Board of Directors or the
Committee from time to time, in their sole discretion, to purchase shares of
Common Stock pursuant to a Stock Sale.
SECTION 7. STOCK SALES
7.1 STOCK SALES. The Board of Directors or Committee may from time to
time, in their sole discretion, determine which of the eligible persons
identified in Section 6 hereof shall be eligible to purchase shares of Common
Stock in a Stock Sale and shall also determine the terms and conditions of
such Stock Sale, including, without limitation, the Purchase Price, the
Offering Period and the number of shares of Common Stock to be offered in
connection therewith.
7.2 OFFER LETTER. Upon the Committee making a determination to sell
Common Stock pursuant to a Stock Sale hereunder in accordance with the
provisions of this Section 7, the Committee shall authorize and have sent to
each Participant, an offer letter ("Offer Letter") setting forth the terms
and conditions upon which Common Stock may be purchased by a Participant.
Such Offer Letter will include, without limitation, the number of shares to
be sold in the Stock Sale; the number of shares which may be purchased by a
Participant, if a limit is established with respect to such Participant; the
Purchase Price per share of the Common Stock sold; the Offering Period;
instructions for acceptance and payment; the method for adjusting the number
of shares which may be purchased by each Participant wishing to participate
in such Stock Sale, in the event of an over-subscription of shares; and any
other items determined by the Committee.
7.3 SHAREHOLDER'S AGREEMENT. Each Participant, other than the Savings
Plan Trustee, who purchases Common Stock pursuant to a Stock Sale shall be
required to execute a Shareholder's Agreement (the "Shareholder's Agreement")
in substantially the same form as attached hereto as Exhibit "A" or in the
form then in use by the Company if different therefrom; provided, however,
that the Board of Directors or Committee may
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<PAGE>
waive this requirement in their discretion. In the absence of such a waiver,
execution of the Shareholder's Agreement shall be a condition precedent to
the Company issuing certificates representing shares of Common Stock
purchased hereunder.
7.4 PURCHASE PRICE. The Purchase Price per share of Common Stock sold
under the Plan shall be equal to the Fair Market Value of the Common Stock at
the beginning of an Offering Period as determined in accordance with Section
7.5 hereof.
7.5 DETERMINATION OF FAIR MARKET VALUE. The Fair Market Value shall be
equal to the value of a minority interest in the Common Stock as determined
(i) by the most recent quarterly appraisal performed by an independent
appraiser engaged by the Board of Directors or the Committee, or (ii) in good
faith by the Board of Directors or Committee, in their discretion.
7.6 OFFERING PERIOD. Offers to sell Common Stock pursuant to a Stock
Sale shall be effective only during a period of time as established by the
Board of Directors or the Committee in their discretion (the "Offering
Period"). Upon termination of an Offering Period, Common Stock may not be
sold pursuant hereto unless a new Offering Period is established hereunder
with respect to a new Stock Sale.
7.7 MANNER OF ACCEPTANCE. Subject to the limitations and conditions of
the Plan or the Offer Letter, a Participant may accept the Company's offer to
sell Common Stock hereunder, in whole or in part, from time to time during
the Offering Period, only by giving written notice of acceptance to the
Secretary of the Company, which notice shall specify the number of shares of
Common Stock to be purchased by the Participant and shall be accompanied by
(1) payment in full to the Company of the Purchase Price of the shares to be
purchased, plus (2) payment in full of such amount as the Company shall
determine to be sufficient to satisfy any liability it may have for any
withholding of federal, state or local income or other taxes incurred by
reason of such purchase, and (3) a Shareholder Agreement meeting the
requirements of this Section 7 if requested by the Company. In the event the
number of shares of Common Stock subscribed for in a Stock Sale exceeds the
number of shares offered by the Company pursuant thereto, the number of
shares which a Participant has indicated a desire to purchase will be
adjusted on a pro rata basis by multiplying such number by a second number,
the numerator of which is the number of shares subscribed for by such
Participant, and the denominator of which is the aggregate total number of
shares subscribed for by all Participants in such Stock Sale.
7.8 PAYMENT OF PURCHASE PRICE. Payment for shares and withholding taxes
shall be made in the form of (1) cash, (2) a personal, certified or bank
cashier's check to the order of the Company, or (3) in any combination of the
foregoing or in any other form or method approved by the Committee, in its
sole discretion, consistent with applicable laws and regulations.
7.9 OTHER TERMS AND CONDITIONS. The Shareholder's Agreement and the
Offer Letter may contain such other provisions, which shall not be
inconsistent with the Plan, as the Committee shall deem appropriate.
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<PAGE>
SECTION 8. NON-TRANSFERABILITY OF RIGHT TO PURCHASE
Rights to purchase Common Stock granted pursuant to a Stock Sale and
under the Plan are not transferable by the Participant except by will or by
the laws of descent and distribution. Any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any such right contrary to the
provisions hereof, shall immediately become void.
SECTION 9. ISSUANCE OF SHARES
As soon as practicable after the Participant has given the Company
written notice of his or her intent to purchase Common Stock pursuant to a
Stock Sale, and after making payment and satisfying all other conditions of
the Shareholder's Agreement and the Offer Letter, the Company shall issue or
transfer to the Participant the number of shares of Common Stock as to which
the Participant has purchased and shall deliver to the Participant a
certificate or certificates therefor, registered in the Participant's name.
In no event shall the Company be required to transfer fractional shares to
the Participant. If the issuance or transfer of shares by the Company would
for any reason, in the opinion of counsel for the Company, violate any
applicable federal or state laws or regulations, the Company may delay
issuance or transfer of such shares to the Participant until compliance with
such laws can reasonably be obtained. In no event shall the Company be
obligated to effect or obtain any listing, registration, qualification,
consent or approval under any applicable federal or state laws or regulations
or any contract or agreement to which the Company is a party with respect to
the issuance of any such shares.
SECTION 10. AMENDMENTS
The Board of Directors may at any time and from time to time alter,
amend, suspend or terminate the Plan or any part thereof as it may deem
proper.
SECTION 11. TERM OF PLAN
This Plan shall terminate on May 1, 2003; provided, however, that the
Board of Directors may at any time prior thereto suspend or terminate the
Plan.
SECTION 12. RIGHTS AS SHAREHOLDER
A Participant shall have no rights as a shareholder of the Company with
respect to any shares of Common Stock which are offered for sale under the
Plan until the date of the issuance of the stock certificate for such shares.
SECTION 13. NO EMPLOYMENT RIGHTS
Nothing contained in this Plan, an Offer Letter or in any Shareholder's
Agreement executed under the Plan shall confer upon any Participant any right
with respect to the continuation of such Participant's employment by the
Company or any Subsidiary or interfere in any way with the right of the
Company or any Subsidiary, subject to the
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terms of any separate written employment agreement to the contrary, at any
time, for any or no reason, to terminate such employment or to increase or
decrease the compensation of the Participant from the rate in existence at
the time of any Stock Sale.
SECTION 14. GOVERNING LAW
The Plan, and all purchases made under this Plan, shall be construed and
shall take effect in accordance with the laws of the State of Montana,
without regard to the conflicts of laws rules of such State.
Adopted to be effective this 1st day of May, 1998.
First Interstate BancSystem, Inc.
By: /s/ Terrill R. Moore
-----------------------------
Title: Senior Vice President and
--------------------------
Chief Financial Officer
--------------------------
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<PAGE>
EXHIBIT "A"
SHAREHOLDER'S AGREEMENT FORM
THIS AGREEMENT is made this _____ day of _________, 1998, by and between
_____________, herein referred to as "Shareholder", and FIRST INTERSTATE
BANCSYSTEM, INC., a Montana corporation, 401 North 31st Street, Billings,
Montana 59101, herein referred to as the "Corporation".
W I T N E S S E T H :
A. Shareholder owns shares of capital stock of the Corporation, which
stock, together with any additional stock hereafter acquired by Shareholder,
is herein referred to as the "Shares".
B. The Corporation desires to restrict the issuance and holding of its
corporate stock to officers, directors and employees of the Corporation or
any of its subsidiaries, or to fiduciaries for the benefit of any such
persons, or to charities. Such persons' status as director, officer or
employee of the Corporation shall be herein referred to as the "Shareholders'
Relationship with the Corporation". This Shareholder's Agreement does not
apply to the Corporation's stock held in the Savings Plan.
C. The Corporation and Shareholder desire to obligate each other to
sell and purchase shares under specified circumstances.
NOW, THEREFORE, in consideration of the above facts and the
Shareholder's and the Corporation's mutual promises herein, the Shareholder
and the Corporation agree as follows:
1. RESTRICTION ON TRANSFER OR PLEDGE OF SHARES. Except as otherwise
provided in this Agreement or as agreed upon in writing by the Shareholder
and the Corporation, Shareholder shall not transfer or permit to be
transferred, whether voluntarily, involuntarily or by operation of law,
resulting from death or otherwise, any or all of the Shares now owned or
hereafter acquired by Shareholder, and any attempted transfer in violation of
this Agreement shall be void. Shareholder shall not encumber or use any
Shares as security for a loan, except upon the written consent of the
Corporation.
2. TRANSFER OF SHARES TO CHARITY. A Shareholder may transfer Shares to
any organization described in Section 170(b)(1)(A) of the Internal Revenue
Code of 1986, as now or hereafter amended (the "Code"), a gift to which
qualifies as a charitable deduction under Sections 170(c), 2055(a), or
2522(a) of the Code (a "Charity"). Any transfer of Shares to a Charity shall
be subject to the Corporation's option, exercisable by action of the Board of
Directors of the Corporation, to purchase all or any portion of the Shares
held by a Charity at the purchase price set forth in this Agreement, which
may be exercised by written notice from the Corporation to the Charity at any
time.
3. PURCHASE OPTION UPON BONA FIDE SALE. If a Shareholder intends to
sell any Shares to any person other than the Corporation, Shareholder shall
give ninety (90) days' written notice to the Corporation of the intention to
sell Shares. The notice, in addition to stating the fact of the intention to
sell Shares, shall state (i) the
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number of Shares to be sold, (ii) the name and address of the proposed
purchaser, (iii) the amount of the consideration and the other terms of the
sale. At the request of the Corporation, Shareholder shall demonstrate to
the reasonable satisfaction of the Corporation that the intended sale is bona
fide. Within ninety (90) days after the Corporation's receipt of the notice
of intention to sell Shares, the Corporation may exercise an option to
purchase all but not less than all of the Shares proposed to be sold.
4. PURCHASE OPTION UPON DEATH. Upon Shareholder's death, the
Corporation, within ninety (90) days after the appointment of a personal
representative for the deceased Shareholder's estate, for which written
notice must be given by said personal representative within ten (10) days
after appointment, may exercise an option to purchase all but not less than
all of the deceased Shareholder's Shares from the personal representative of
his or her estate. Shareholder, by signing this Agreement, directs his or her
personal representatives to open Shareholder's estate promptly in the court
of proper jurisdiction and execute, procure and deliver all documents,
including, but not limited to appropriate order of such court and estate and
inheritance tax waivers, as shall be required to effectuate the purposes of
this Agreement.
5. PURCHASE OPTION UPON INVOLUNTARY TRANSFER. If other than by reason
of Shareholder's death, Shares are transferred by operation of law to any
person other than the Corporation (such as but not limited to a shareholder's
trustee in bankruptcy, a purchaser at any creditor's or court sale or the
guardian or conservator of an incompetent shareholder), Shareholder shall
immediately give written notice to the Corporation of such transfer. The
Corporation, within ninety (90) days of the Corporation's receipt of actual
notice of the transfer, may exercise an option to purchase all but not less
than all of the Shares so transferred from the transferee of the Shares. Any
transfer of the Shares by operation of law shall be subject to this right and
option of the Corporation to purchase the Shares.
6. PURCHASE OPTION UPON TERMINATION OF RELATIONSHIP WITH THE
CORPORATION. Upon the termination of Shareholder's Relationship with the
Corporation, such termination being for any reason whatsoever, including but
not limited to the voluntary resignation of Shareholder, the Corporation,
within ninety (90) days after the date of such termination, may exercise an
option to purchase all but not less than all of the Shares owned by the
terminated Shareholder at the time of such termination.
7. PURCHASE OPTION UPON DISABILITY. If Shareholder shall become totally
disabled, the Corporation, within ninety (90) days after the date of such
total disability, may exercise an option to purchase all but not less than
all of the Shares owned by the disabled Shareholder at the time of the
commencement of his or her total disability. A shareholder shall be deemed
totally disabled within the meaning of this paragraph 7 if as a result of
sickness, accident or injury, he or she becomes wholly and continuously
unable to perform his or her duties for a period of six consecutive months,
and his or her disability shall be deemed to have commenced at the end of
said six-month period.
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8. GENERAL CORPORATE PURCHASE OPTION. Upon determination by the
Corporation's Board of Directors that the number of Shares held by
Shareholder is excessive in view of the Corporation's policy that the level
of a shareholder's stock ownership should reflect certain factors, including
but not limited to (a) the relative contribution of Shareholder to the
economic performance of the Corporation, (b) the effort being put forth by
Shareholder, and (c) the level of responsibility of Shareholder, the
Corporation may exercise an option to purchase a portion of Shareholder's
Shares sufficient to decrease the number of Shares owned by the Shareholder
to an amount that the Board of Directors, in its sole discretion, believes is
appropriate. The Corporation shall not exercise said option in anticipation
of a sale of the Corporation or a majority of the Corporation's stock and the
Corporation agrees to exercise said option in a nondiscriminatory fashion.
The number of Shares that the Corporation can purchase from Shareholder is
limited to the stock obtained by the Shareholder after January 1, 1994.
9. EXERCISE OF OPTION. The Corporation shall exercise any of the Options
granted in paragraphs 3, 4, 5, 6, or 7 by delivering written notice of its
exercise of the option, within the time provided in the applicable paragraph,
to the Shareholder in the case of a paragraph 3 option, to the personal
representative of Shareholder's estate in the case of a paragraph 4 option,
to the transferee in the case of a paragraph 5 option, to the terminated
Shareholder in the case of a paragraph 6 option, and to the disabled
shareholder in the case of a paragraph 7 option. The Corporation shall
exercise the option granted in paragraph 8 by delivering written notice of
its exercise of the option, specifying the number of Shares to be purchased,
to the Shareholder.
10. EFFECT OF NON-EXERCISE OF OPTIONS. If the purchase options are
forfeited or not exercised in compliance with the terms of this Agreement,
then the Shares to which the option applied shall be unrestricted and no
longer subject to the terms of this Agreement.
11. THE PURCHASE PRICE. The purchase price for each Share purchased
pursuant to any of the options granted in this Agreement shall be the
appraised value of a minority Share as stated in the most recent quarterly
appraisal available to the Corporation. The Corporation's Shares shall be
appraised as of the last day of each calendar quarter by an unaffiliated firm
qualified to make such an appraisal, as determined by the Corporation's Board
of Directors. The expense of determining the appraised value shall be borne
by the Corporation. The appraisal of the Shares delivered to any department
division or subsidiary of the Corporation may be utilized under this
paragraph.
The Corporation may, at its option, withhold any amount that the
Shareholder owes the Corporation or its subsidiaries from the amount of the
Purchase Price payable to Shareholder and apply said amount to such
indebtedness.
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12. PAYMENT OF THE PURCHASE PRICE.
12.1 PAYMENT TERMS. The purchase price for Shares to be purchased by
the Corporation pursuant to this Agreement shall be paid either in cash at
closing or, at Shareholder's (including the personal representative of a
deceased Shareholder) election, in installments as follows:
(a) 25% of the purchase price at the closing.
(b) The balance of the purchase price in three (3) annual equal
payments of principal plus accrued interest thereon at a fixed
annual rate equal to the 5 year Treasury Note rate at the date
of closing plus one percent, the first installment to be paid one
year after the closing, and the remaining installments each year
thereafter.
The purchase price pursuant to exercise of the paragraph 5 option shall be
paid in full in cash at the closing.
12.2 PROMISSORY NOTE ON DEFERRED PORTION. The deferred portion of the
purchase price, if any, shall be evidenced by the promissory note of the
Corporation made payable to the order of the Shareholder. The Corporation
note shall be substantially in the form of that set forth in Exhibit A.
13. THE CLOSING.
13.1 TIME AND PLACE. Unless otherwise agreed by the parties, the
closing of the sale and purchase of Shares, as provided in this Agreement,
shall take place at the general offices of the Corporation. In the case of a
purchase of Shares from a deceased Shareholder's estate under paragraph 4,
the closing shall take place within one hundred twenty (120) days after the
appointment of a personal representative for the deceased Shareholder's
estate. In the case of a purchase of Shares under paragraphs 3, 5, 6, 7, or
8, the closing shall take place ten (10) days after the delivery to the
Shareholder of written notice by the Corporation of its exercise of the
option to purchase the Shareholder's Shares.
13.2 DOCUMENTS. At the closing of the sale and purchase, the
Shareholder and the Corporation shall execute and immediately deliver to each
other the various documents which shall be required to carry out their
undertakings hereunder, including but not limited to the payment of cash, the
execution and delivery of notes and the assignment and delivery of stock
certificates free and clear of all taxes, debts, claims, judgments, liens or
encumbrances whatsoever.
14. LEGEND ON CERTIFICATES. All Shares now or hereafter owned by
Shareholder shall be subject to the provisions of this Agreement and
Shareholder, and his or her transferee or successor agrees that the
certificates representing same shall bear the following legend reciting the
existence of the Agreement:
The sale, transfer or encumbrance of this certificate is subject to an
agreement to restrict transfer or acquisition of the shares. A copy of the
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<PAGE>
agreement is on file in the office of the secretary of the
Corporation. Any transfer or acquisition in violation of the agreement
is null and void.
Upon the execution of this Agreement, Shareholders shall immediately
temporarily surrender his or her stock certificates to the Corporation and
the Corporation shall cause the above legend to be placed thereupon before
returning the certificates.
15. REISSUED SHARES. The Corporation shall have the right to substitute
or reissue stock in exchange for the Shares in the event of a stock split,
merger, consolidation, name change, sale, spin off, share exchange, or other
corporate reorganization. Substituted or reissued stock shall be subject to
the terms of this Agreement.
16. TERMINATION.
16.1 EVENTS CAUSING TERMINATION. This Agreement and all restrictions on
stock transfer created hereby shall be effective as of the date hereof and
shall terminate on the occurrence of the bankruptcy, receivership or
dissolution of the Corporation, on the public trading of the Shares, or on
the execution of a written instrument by the Corporation and the party or
parties who then own Shares subject to this Agreement which terminates the
same.
16.2 SURVIVAL OF RIGHTS AND REMEDIES. The termination of this Agreement
for any reason shall not affect any right or remedy existing hereunder prior
to the effective date of termination hereof.
17. GENERAL PROVISIONS.
17.1 REMEDIES. The parties agree that they will not have an adequate
remedy at law for the breach of this Agreement because, among other reasons,
the Shares cannot readily be purchased or sold on the open market. The
parties shall have available for any breach of this Agreement the remedies of
specific performance and injunctive relief, together with all other remedies
at law or in equity. No waiver of or forbearance to enforce any right or
provision hereof shall be binding unless in writing and signed by the party
to be bound, and no such waiver or forbearance in any instance shall apply to
any other instance or any other right or provision.
17.2 MODIFICATION OR TERMINATION. This Agreement may not be modified or
terminated orally, and no modification, termination, or amendment shall be
valid unless in writing signed by all parties hereto.
17.3 GOVERNING LAW. This Agreement shall be governed for all purposes
by the laws of the State of Montana.
17.4 SEVERABILITY. Each term and provision of this Agreement is
intended to be enforced to the maximum extent permitted by applicable law.
If any term or provision of this Agreement or the applicability thereof to
any person or circumstances shall to any extent be invalid or unenforceable,
the remainder of this Agreement, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby and shall continue in full
force and effect.
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<PAGE>
17.5 NOTICES. All notices provided for by this Agreement shall be made
in writing and shall be given either: (1) by actual delivery of the notice to
the party entitled thereto; or (2) by mailing the notice in the U.S. mails,
certified mail, return receipt requested to the last known address of the
party entitled thereto. The notice shall be deemed to be received in case
(1), on the date of its actual receipt by a party and in case (2), on the
date of its mailing. Any notice to be given by Shareholder shall be given on
the form of notice attached hereto as Exhibit B.
17.6 BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the Corporation and the Shareholder and their respective heirs,
personal representatives, successors and assigns.
17.7 TIME. Time shall be of the essence of this Agreement.
17.8 HEADINGS. The headings used herein are for convenience only, and
shall not be construed as a part of this Agreement or as a limitation on the
scope of the particular paragraphs to which they refer.
17.9 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties, and supersedes any and all prior negotiations
and understandings.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth on page 1.
FIRST INTERSTATE BANCSYSTEM, INC.
By ______________________________
Terrill R. Moore, Secretary
"Corporation"
____________________________
"Shareholder"
6
<PAGE>
EXHIBIT A
$_____________ (Date)
-----------------
Billings, Montana
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
_____ ______, at _________________, or such other place as is designated from
time to time by the holder of this note, in lawful money of the United
States, the sum of ________________________________________________________
($_________) in the following manner:
$_________ (including principal and interest) on ________, ____, and a
like sum on the same day of each succeeding year thereafter until the
full amount due hereunder has been paid.
Each payment shall be applied first to accrued interest on the entire
outstanding principal balance from time to time at the rate of ____% per
annum from the date hereof and then to principal. The undersigned may
not make advance payments on principal.
Any installment of principal or interest payable hereunder, or any part
thereof, which is not paid when due, shall thereafter bear interest at the
rate equal to six percent (6%) over the interest rate stated above.
If any payment due hereunder remains unpaid for more than thirty (30)
days after it is due, the holder hereof may, at its option, declare the
entire unpaid balance of principal and interest hereunder to be immediately
due and payable.
Waiver by the holder hereof of any default by the undersigned shall not
constitute a waiver by the holder of a subsequent default. Failure by the
holder to exercise any right, power or privileges which it may have by reason
of a default by the undersigned shall not preclude the exercise of such
right, power or privilege so long as such default remains uncured or if a
subsequent default occurs.
The undersigned agrees to pay all costs of collection, including a
reasonable attorney's fee, if this note is placed in the hands of an attorney
for collection after default, and hereby waives demand, presentment for
payment, protest, notice of protest, and notice of dishonor.
Words used in the singular herein shall include the plural.
FIRST INTERSTATE BANCSYSTEM, INC.
By:
--------------------------------
Its:
--------------------------------
<PAGE>
EXHIBIT B
NOTICE
To: First Interstate BancSystem, Inc.
401 North 31st Street
Billings, MT 59101
Pursuant to the Shareholder's Agreement between
________________________ ("Shareholder") and First Interstate BancSystem,
Inc. ("Corporation") dated ______________, the undersigned hereby gives
notice of:
(Check One)
_____ The undersigned shareholder's intention to sell Shares as follows:
- Number of Shares: ____________
- Proposed Purchaser
and Address: __________________________
__________________________
__________________________
- Consideration: __________________________
- Terms of Sale: __________________________
_____ The appointment of the undersigned as personal representative of
Shareholder's Estate on __________________________. A true and correct copy
of the personal representative letters issued to the undersigned is attached
hereto.
_____ The involuntary transfer of Shareholder's Shares
Dated: ______________________________________
__________________________________
<PAGE>
ADDENDUM TO SHAREHOLDER'S AGREEMENT DATED , BETWEEN
, SHAREHOLDER, AND FIRST INTERSTATE
BANCSYSTEM, INC., CORPORATION
THIS AGREEMENT is made this ____ day of _________________, 19__, by and
between _______________________________, herein referred to as "Shareholder",
___________________________, herein referred to as "Fiduciary", and FIRST
INTERSTATE BANCSYSTEM, INC., a Montana corporation, herein referred to as the
"Corporation", as an addendum to the Shareholder's Agreement dated
_______________, by and between Shareholder and the Corporation, herein
referred to as the "Shareholder's Agreement."
W I T N E S S E T H:
A. Shareholder's Shares are held by Fiduciary for the benefit of
Shareholder.
B. Shareholder and the Corporation desire to bind Fiduciary to the
terms and conditions of the Shareholder's Agreement.
NOW, THEREFORE, the parties agree as follows:
1. FIDUCIARY TO BE BOUND BY SHAREHOLDER'S AGREEMENT. The parties
agree that Fiduciary, as custodian of or trustee over Shareholder's Shares,
is bound by the terms and conditions of the Shareholder's Agreement and is
obligated to manage and control said Shares in accordance with the
restrictions and obligations of the Shareholder's Agreement.
2. RATIFICATION OF SHAREHOLDER'S AGREEMENT. The parties agree that
except as modified herein, the terms and conditions of the Shareholder's
Agreement are hereby confirmed and ratified.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
set forth above.
FIRST INTERSTATE BANCSYSTEM, INC.
By: _________________________________
Terrill R. Moore, Secretary
"CORPORATION"
________________________________
"SHAREHOLDER"
By: ____________________________
Its: ___________________________
"FIDUCIARY"
<PAGE>
HOLLAND & HART LLP
ATTORNEYS AT LAW
SUITE 500
215 SOUTH STATE STREET
SALT LAKE CITY, UTAH 84111-2346
DENVER - ASPEN TELEPHONE (801) 595-7800
BOULDER - COLORADO SPRINGS FACSIMILE (801) 364-9124
DENVER TECH CENTER
BILLINGS - BOISE
CHEYENNE - JACKSON HOLE
SALT LAKE CITY
May 15, 1998
First Interstate BancSystem, Inc.
401 North 31st Street
Billings, MT 59101
Ladies and Gentlemen:
We have acted as counsel to First Interstate BancSystem, Inc., a Montana
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 (the "Act") of 500,000 shares of the Company's common
stock, no par value (the "Shares"), to be offered upon the terms and subject
to the conditions set forth in the Savings and Profit Sharing Plan for
Employees of First Interstate BancSystem, Inc., as Amended and Restated, the
First Interstate BancSystem, Inc. Stock Option and Stock Appreciation Rights
Plan, as Amended, and the First Interstate BancSystem, Inc. Employee Stock
Purchase Plan (collectively, the "Stock Plans").
In connection therewith, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Articles of Incorporation
of the Company, the Bylaws of the Company, the Stock Plans, records of
relevant corporate proceedings with respect to the offering of the Shares and
such other documents, instruments and corporate proceedings with respect to
the offering of the Shares and such other documents, instruments and
corporate records as we have deemed necessary or appropriate for the
expression of the opinion contained herein. We have also reviewed the
Company's Registration Statement on Form S-8 (the "Registration Statement")
to be filed under the Act with the Securities and Exchange Commission on May
19, 1998 with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the
conformity to original documents of all records, certificates and other
instruments submitted to us as copies, the authenticity and completeness of
the originals of those records, certificates and other instruments submitted
to us as copies and the correctness of all statements of fact contained in
all records, certificates and other instruments that we have examined.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued in accordance with the terms of the Stock
Plans, will be validly issued, fully paid and non-assessable.
<PAGE>
The opinion expressed herein is based solely upon and is limited to the
general corporation laws of the State of Montana and the federal laws of the
United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Holland & Hart LLP
<PAGE>
EXHIBIT 23.1
The Board of Directors
First Interstate BancSystem, Inc.:
We consent to incorporation by reference in the registration statement to be
filed on Form S-8 of First Interstate BancSystem, Inc. of our report dated
February 6, 1998, relating to the consolidated balance sheets of First
Interstate BancSystem, Inc. and subsidiaries as of December 31, 1997 and
1996, and the related consolidated statements of income, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1997, which report appears in the December 31, 1997, annual
report on Form 10-K of First Interstate BancSystem, Inc.
We consent to incorporation by reference in the registration statement to be
filed on Form S-8 of First Interstate BancSystem, Inc. of our report dated
May 30, 1997, relating to the statements of net assets available for benefits
of the Savings and Profit Sharing Plan for Employees of First Interstate
BancSystem of Montana, Inc. as of December 31, 1996 and 1995 and the related
statements of changes in net assets available for employee benefits for the
years then ended, which report appears in the December 31, 1996 Form 11-K of
the Savings and Profit Sharing Plan for Employees of First Interstate
BancSystem of Montana, Inc.
We consent to the reference to our firm under the heading "Item 3.
Incorporation of Certain Documents by Reference" in the registration
statement.
/s/ KPMG Peat Marwick LLP
Billings, Montana
May 18, 1998
