<PAGE>
As filed with the Securities and Exchange Commission on April 22, 1999.
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
Incorporation or Organization) Number)
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,
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
555 Seventeenth Street, Suite 3200
Denver, CO 80202
(303) 295-8000
Attention: Mark D. Ebel, Esq.
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount to Offering Aggregate Amount of
Title of Each Class of Securities be Price Per Offering Registration
to be Registered(1) Registered(2) Share(3) Price Fee(4)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value . . . . . . . . 500,000 $37.00 $18,500,000 $5,457.50
- -----------------------------------------------------------------------------------------------
TOTAL . . . . . . . . . . . . . . . 500,000 $37.00 $18,500,000 $5,457.50
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</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 the First Interstate BancSystem, Inc. Employee Stock Purchase Plan
(collectively, the "Plans") 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, described herein.
(3) Calculated in accordance with Rule 457(h) under the Securities Act,
based upon the latest appraised minority value of $37.00 per share of Common
Stock.
(4) An aggregate of 55,038 shares are being carried forward from those
previously registered by the Registration Statement on Form S-8 (File No.
333-53011). A registration fee of $446.58 was previously paid with respect
to the shares being carried forward from that filing. The previously
registered shares being carried forward together with the shares being
registered hereby represent the estimated number of total shares intended for
future issuance pursuant to the Plans.
--------------------
Pursuant to Rule 429 under the Securities Act, the document containing
the information required by Part I of this Registration Statement on Form S-8
also relates to the Registrant's shares of Common Stock previously registered
on Registration Statement on Form S-8 (File No. 333-53011).
2
<PAGE>
PART I
This Registration Statement relates to the registration of 500,000
additional shares of Common Stock, no par value per share, of First
Interstate BancSystem, Inc. (the "Registrant") reserved for issuance and
delivery 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 the First
Interstate BancSystem, Inc. Employee Stock Purchase Plan (collectively, the
"Plans").
The increase in the number of shares authorized to be issued under the
Plans was approved by the Registrant's Board of Directors on March 18, 1999.
Pursuant to a Form S-8 Registration Statement filed by the Registrant on May
19, 1998, the Registrant has previously registered 500,000 shares of Common
Stock, of which 56,338 shares remain available for issuance under the Plans.
The contents of that Form S-8 Registration Statement (File No. 333-53011) are
incorporated herein by reference pursuant to General Instruction E to Form
S-8.
Item 1. PLAN INFORMATION.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information required by Items 1 and 2 of Part I of Form S-8 will be
given to employees participating in the Plans and are not required to be
filed as a part of this Registration Statement or as an Exhibit.
PART II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant and the Savings and
Profit Sharing Plan for Employees of First Interstate BancSystem, Inc., as
amended (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, 1998.
(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, 1997.
(c) 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, 1998 and 1997, and for each of the years in the three-year period ended
December 31, 1998,
3
<PAGE>
that are included in the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998, incorporated by reference in this Registration
Statement, and the statements of net assets available for benefits of the
Savings Plan as of December 31, 1997 and 1996 and the related Statement of
changes in net assets available for benefits for the year ended December 31,
1997, that are included in the Savings Plan's Annual Report on Form 11-K for
the year ended December 31, 1997, incorporated by reference in this
Registration Statement, have been audited by KPMG 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 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
7,960,622 shares were outstanding as of April 6, 1999, and 100,000 shares of
preferred stock without par value, none of which were outstanding as of April
6, 1999.
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.
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 92% of the shares subject to contractual
transfer restrictions set forth in shareholder agreements (as described
below) and approximately 8% held by 15 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
4
<PAGE>
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 (the "Securities Act"), and applicable state
securities laws. In addition, most shares of the Common Stock are subject to
one of three 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 15 shareholders who own an aggregate of approximately
613,000 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
(except to a charity) 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 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.
Charities that receive gifts of Common Stock from existing shareholders
are asked to sign a Charity Shareholder's Agreement, which gives the
Registrant the right to repurchase the stock in any of the following events:
1) the charity's intention to sell the stock, 2) transfer of the stock by
operation of law, and 3) at any other time as determined by the Registrant.
Common Stock purchased pursuant to the Savings Plan is 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.
5
<PAGE>
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 shareholders 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
shareholders in certain circumstances.
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.
6
<PAGE>
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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Exhibits listed in the Exhibit Index below, hereby incorporated by
reference, are filed as a part of this Registration Statement.
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.
7
<PAGE>
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.
8
<PAGE>
SIGNATURES
1. REGISTRANT
Pursuant to the requirements of the Securities Act, 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 April 20, 1999.
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, this Registration
Statement has been signed below by the following persons in the capacities
indicated on April 20, 1999:
<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
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
/s/ James Haugh Director
- ----------------------------
James Haugh
/s/ Thomas W. Scott Chief Executive Officer and Director
- ---------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Thomas W. Scott
/s/ Lyle R. Knight President, Chief Operating Officer and Director
- ----------------------------
Lyle R. Knight
/s/ Terrill R. Moore Senior Vice President, Chief Financial Officer and Secretary Director
- ---------------------------- (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, as amended,
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 April 18, 1999.
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
10
<PAGE>
FIRST INTERSTATE BANCSYSTEM, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Regulation S-K
--------------
Exhibit Document
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<C> <S>
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(7) Form of 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
</TABLE>
11
<PAGE>
<TABLE>
<C> <S>
4.14(3) Fifth Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant, dated September 18, 1997
4.15 Sixth Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant dated December 12, 1998.
4.16 Seventh Amendment to the Savings and Profit Sharing Plan for
Employees of the Registrant dated April 6, 1999.
4.17(1) Stock Option and Stock Appreciation Rights Plan of the
Registrant, as amended
4.18(7) Employee Stock Purchase Plan of the Registrant, dated May 1,
1998
4.19 Shareholder's Agreement with Scott family members dated
January 11, 1999.
4.20 Form of Charity Shareholder's Agreement with charitable
shareholders.
5 Opinion of Holland & Hart LLP, as to the legality of
securities being registered.
23.1 Consent of KPMG LLP, Independent Certified Public
Accountants.
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5).
24 Power of Attorney (included on page 9 of this Registration
Statement).
</TABLE>
- --------------
(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, filed with the Securities and Exchange Commission on October 15,
1996.
(3) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-37847, filed with the Securities and Exchange Commission
on October 14, 1997.
(4) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-25633 filed with the Securities and Exchange Commission
on April 22, 1997.
(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.
(7) Incorporated by reference to the Registrant's Registration Statement on
Form S-8, No. 333-53011, filed with the Securities and Exchange Commission
on May 19, 1998.
12
<PAGE>
SIXTH AMENDMENT TO SAVINGS AND PROFIT SHARING PLAN FOR
EMPLOYEES OF FIRST INTERSTATE BANCSYSTEM OF MONTANA, INC. (AS
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1991)
The Savings and Profit Sharing Plan for Employees of First Interstate
BancSystem of Montana, Inc. (As Amended and Restated Effective January 1,
1991) (the "Plan") is hereby amended as follows, effective immediately:
ARTICLE 1
The name of the Plan is changed to "Savings and Profit Sharing Plan for
Employees of First Interstate BancSystem, Inc."
ARTICLE 2
The first sentence of Section 1.1 of the Plan is modified to read in its
entirety as follows:
First Interstate BancSystem, Inc., formerly known as First
Interstate BancSystem of Montana, Inc., formerly known as
Security Banks of Montana (the "Company") heretofore established
and maintained a savings plan, known as the "Savings Plan for
Employees of First Interstate BancSystem of Montana, Inc." (the
"Savings Plan"), for the benefit of its eligible Employees,
effective as of July 1, 1983. Said Savings Plan was thereafter
further amended and restated, effective as of January 1, 1987.
ARTICLE 3
Section 2.1(j) of the Plan is modified to read in its entirety as follows:
(j) "COMPANY" means First Interstate BancSystem, Inc. (formerly known
as "First Interstate BancSystem of Montana, Inc." and previously
"Security Banks of Montana"), or any successor.
ARTICLE 4
Section 2.1(dd) of the Plan is modified to read in its entirety as follows:
(dd) "PLAN" means the Savings and Profit Sharing Plan for Employees of
First Interstate BancSystem, Inc. as set forth herein and as
amended from time to time.
1
<PAGE>
ARTICLE 5
The following sentence is added at the end of subsection (b) of Section
4.3 of the Plan:
For each Plan Year after 1997, the amount of Matching Contributions
shall be adjusted on or before the close of the Plan Year, so that
the total amount of Matching Contributions made on behalf of each
Participant for the Plan Year equals 125 percent of the first four
percent of Compensation contributed by the Participant as a
Before-Tax Contribution during the Plan Year.
ARTICLE 6
Except as modified herein, all provisions of the Plan shall remain in
full force and effect.
DATED this 12 day of Dec., 1998.
FIRST INTERSTATE BANCSYSTEM, INC.
By: /s/ Robert A. Jones
---------------------------------
Its:
--------------------------------
"Company"
2
<PAGE>
SEVENTH AMENDMENT TO SAVINGS AND PROFIT SHARING PLAN FOR
EMPLOYEES OF FIRST INTERSTATE BANCSYSTEM
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1991)
The Savings and Profit Sharing Plan for Employees of First Interstate
BancSystem, Inc. (As Amended and Restated Effective January 1, 1991) (the
"Plan") is hereby amended as follows, effective immediately:
ARTICLE 1
Section 3.2 of the Plan is modified to read in its entirety as follows:
3.2 ELIGIBILITY SERVICE. An Employee shall receive credit for one year
of Eligibility Service upon the first to occur of (a) or (b) below:
(a) the completion of his initial 12-month period of employment as an
Employee, provided he has completed at least 1,000 Hours of Service
during such 12-month period; or
(b) the completion of any Plan Year beginning after his Employment
Commencement Date as an Employee during which he has completed at
least 1,000 Hours of Service.
In the case of Employees who were employed by First Citizens Bank of
Bozeman, Montana on January 1, 1995, Eligibility Service shall include Hours
of Service performed for First Citizens Bank of Bozeman, Montana prior to the
time it became an Affiliate. In the case of Employees who were employed by
First National Park Bank, N.A. on July 1, 1995, Eligibility Service shall
include Hours of Service performed for First National Park Bank, N.A. prior
to the time it became an Affiliate. IN THE CASE OF EMPLOYEES WHO WERE
EMPLOYED IN EITHER THE HELENA, MONTANA OR BELGRADE, MONTANA BRANCH OF THE
FIRST NATIONAL BANK OF MONTANA ON THE DATE ON WHICH SUBSTANTIALLY ALL THE
OPERATING ASSETS OF SUCH BRANCH WERE ACQUIRED BY COMPANY OR AN AFFILIATE,
ELIGIBILITY SERVICE SHALL INCLUDE HOURS OF SERVICE PERFORMED FOR FIRST
NATIONAL BANK OF MONTANA PRIOR TO SUCH DATE.
For purposes of determining the Eligibility Service of an individual who
is an employee of First Interstate Bank of Wyoming, N.A., First Interstate
Bank of Montana, N.A., Mountain Bank, SECURITY STATE BANK SHARES OR SECURITY
STATE BANK AND TRUST COMPANY on the date such organization first becomes an
Affiliate, service previously completed by the individual as an employee of
either such organization (including service for any affiliated or predecessor
entity taken into account for eligibility purposes in a qualified pension or
profit sharing plan maintained by such organization) shall be taken into
account to the same extent as service completed for an Employer.
Page 1 of 2
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ARTICLE 2
Except as modified herein, all provisions of the Plan shall remain in
full force and effect.
DATED this 6th day of April, 1999.
FIRST INTERSTATE BANCSYSTEM, INC.
By: Terrill R. Moore
------------------------------------
Its: Secretary
----------------------------------
"Company"
Page 2 of 2
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SHAREHOLDERS' AGREEMENT
THIS AGREEMENT is made this 11th day of January, 1999, by and between
those individuals and entities listed on Exhibit A herein collectively
referred to as "Current Shareholders," and each singly referred to as a
"Current 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. The Current Shareholders own common stock of the Corporation as
indicated on Exhibit A, which stock, together with any additional stock
hereafter acquired by each Shareholder, as herein defined, is herein referred
to as the "Shares."
B. The Current Shareholders are the owners of a majority of the Shares
and desire the Shares to remain closely held in order to promote harmonious
management of the Corporation's affairs.
C. The parties are subject to a Shareholders' Agreement dated September
23, 1994 and amended September 7, 1995 which they now desire to terminate and
to replace with this Agreement restricting the sale or transfer of Shares.
NOW, THEREFORE, in consideration of the above facts and the Current
Shareholders' and the Corporation's mutual promises herein, the Current
Shareholders and the Corporation agree as follows:
1. TERMINATION OF PRIOR AGREEMENT. Upon execution of this Agreement by
all Current Shareholders and the Corporation, the Shareholders' Agreement
dated September 23, 1994 and amended September 7, 1995, shall be terminated.
2. DEFINITIONS. For purposes of this Agreement, the following terms
have the meanings indicated:
a. CHARITY: an organization described in Sections 170(c), 2055(a)
and 2522(a) of the Internal Revenue Code of 1986 and any amendments thereto.
b. CHARITY SHAREHOLDER: a Shareholder which is a Charity.
c. ELIGIBLE RECIPIENT: a lineal descendant of Homer A. Scott,
including descendant by adoption; a Spouse of a living lineal descendant of
Homer A. Scott; a Charity; or an Entity.
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d. ENTITY: a corporation, limited liability company, partnership,
or other entity in which, at the applicable time, each class of stock,
membership interest, partnership interest, or other ownership interest is one
hundred percent (100%) owned by Eligible Recipients.
e. NON-CHARITY ELIGIBLE RECIPIENT SHAREHOLDERS: all Shareholders
who are also Eligible Recipients except Charity Shareholders.
f. PLAN: the Savings and Profit Sharing Plan for the Employees
of the Corporation, as amended or supplemented from time to time, and any
successor or replacement plan.
g. REPRESENTATIVE: as established by a Shareholder, an
individual or entity holding shares in a fiduciary or trust capacity, or an
account, for the benefit of a Shareholder or an Eligible Recipient. The term
is subject to the restrictions of paragraph 4.
h. SHAREHOLDER: any holder of Shares governed by or received
pursuant to the terms of this Agreement, including Current Shareholders.
i. SPOUSE: a spouse by marriage through solemnization or
declaration and excluding a spouse by common law marriage.
3. RESTRICTION ON TRANSFER OR PLEDGE OF SHARES. Except as otherwise
provided in this Agreement or with the written consent of the Corporation, no
Shareholder shall 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 such Shareholder, and
any attempted transfer in violation of this Agreement shall be void. Subject
to encumbrances existing on the date of this Agreement, no Shareholder shall
encumber or use any Shares as security for a loan, except upon the written
consent of the Corporation.
4. PERMITTED TRANSFERS
4.1 PERMITTED TRANSFER DEFINED. A Shareholder may transfer or
permit the transfer of Shares to an Eligible Recipient or a Representative.
If the transferee is not otherwise a Shareholder, in order for the transfer
to be effective, transferor shall deliver a copy of this Agreement to
transferee and shall cause said transferee to sign an acknowledgment in the
form attached hereto as Exhibit B and shall deliver the signed acknowledgment
to the secretary of the Corporation within ten (10) days of the transfer;
provided, however, that if the transfer is to a Charity, all Shares
transferred to the Charity shall be subject to the then current
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shareholder agreement governing Shares held by Charities (the "Charity
Shareholder Agreement"), and shall no longer be subject to this Agreement.
Each Charity receiving Shares must execute the Charity Shareholder Agreement
or an acknowledgment of such shareholder agreement, as requested by the
Corporation. Notwithstanding the foregoing, the parties acknowledge that the
Board of Directors of the Corporation must approve the transfer of Shares to,
and may in the aggregate limit the number of Shares which can be transferred
to, the trustee of the Plan.
4.2 BOARD APPROVED TRANSFERS. Subject to approval of the Board of
Directors of the Corporation, a Shareholder may transfer or permit to be
transferred Shares to a then current officer, director (including advisory
directors), or employee of the Corporation or any of its subsidiaries or to
the trustee of the Plan, provided, however, that such Shares shall and must
become subject to the then current shareholder agreement governing Shares
held by officers, directors and employees of the Corporation and its
subsidiaries and shall no longer be subject to this Agreement, except that
such Shares transferred to and held by the trustee of the Plan shall not be
required to be restricted by any shareholder agreement. Each transferee of
Shares pursuant to this paragraph, except the trustee of the Plan, shall
execute the then current shareholder agreement.
5. PURCHASE OPTION UPON VOLUNTARY TRANSFER.
5.1 NOTICE OF TRANSFER. If a Shareholder intends to transfer any
Shares to any person other than the Corporation, an Eligible Recipient, a
Representative, or the intended recipient of a transfer approved pursuant to
paragraph 4.2 hereof, the Shareholder shall give written notice to the
Corporation and to each remaining Non-Charity Eligible Recipient Shareholder
of the intention to transfer Shares. The notice, in addition to stating the
intention to transfer Shares, shall state (i) the number of Shares to be
transferred, (ii) the name, business and residence address of the proposed
transferee, (iii) whether or not the transfer is for a valuable
consideration, and, if so, the amount of the consideration and the other
terms of the sale. If the transfer is a sale, at the request of the
Corporation or any remaining Non-Charity Eligible Recipient Shareholder, the
Shareholder intending to transfer Shares shall demonstrate to the reasonable
satisfaction of the Corporation or such remaining Non-Charity Eligible
Recipient Shareholders that the intended sale is bona fide.
5.2 PRIMARY OPTION TO PURCHASE. Within sixty (60) days after the
Corporation's receipt of the notice of intention to transfer Shares, the
Corporation may exercise an option to purchase all or any portion of the
Shares proposed to be transferred for the price and upon the terms herein
provided. The Corporation shall give written notice of its election, pursuant
to the option herein, to purchase all, some, or none of the Shares proposed
to be transferred to the Shareholder intending to
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transfer the Shares and to each remaining Non-Charity Eligible Recipient
Shareholder within sixty (60) days after the Corporation's receipt of notice
of the intended transfer. If the Corporation does not exercise its option
to purchase all or any portion of such Shares, each remaining Non-Charity
Eligible Recipient Shareholder, within sixty (60) days after the date of the
Corporation's notice of election pursuant to the option herein, but not more
than one hundred twenty (120) days after the Shareholder's notice of intent
to transfer Shares, may exercise an option to purchase that proportion of
such unpurchased Shares which equals the proportion which the number of the
Shares owned by each such remaining Non-Charity Eligible Recipient
Shareholder at the time of the Corporation's receipt of said notice is of the
total number of the Shares then owned by all such remaining Non-Charity
Eligible Recipient Shareholders. The purchase option granted in this
paragraph is sometimes referred to herein as the "Primary Option."
5.3 SECONDARY OPTION TO PURCHASE. If neither the Corporation nor
a Non-Charity Eligible Recipient Shareholder exercises its, his or her
Primary Option to purchase all of the Shares, each other Non-Charity Eligible
Recipient Shareholder who is granted and who exercises a Primary Option may,
within thirty (30) days after the expiration of the one hundred twenty-day
option periods provided for in paragraph 5.2 exercise an option to purchase
the Shares with respect to which the Corporation or such Shareholder has
failed to exercise his or her Primary Option (hereinafter the "Option
Shares"). In the case of a single other Non-Charity Eligible Recipient
Shareholder, his or her option shall be to purchase all of the Option Shares.
In the case of two or more other Non-Charity Eligible Recipient
Shareholders, each such other Non-Charity Eligible Recipient Shareholder's
option shall be to purchase the number of the Option Shares which bears the
same proportion to the total number of the Option Shares as the number of
Shares owned by each such other Non-Charity Eligible Recipient Shareholder at
the time of the Corporation's receipt of the notice provided for in paragraph
5.2 bears to the total number of Shares then owned by all such other
Non-Charity Eligible Recipient Shareholders, provided that all such other
Non-Charity Eligible Recipient Shareholders may by agreement among themselves
determine the proportions in which some or all of their number may exercise
the option granted in this paragraph 5.3. The Purchase Option granted by
this paragraph is sometimes referred to herein as the "Secondary Option."
5.4 PARTIAL EXERCISE OF OPTIONS PROHIBITED. The Corporation and
the remaining Non-Charity Eligible Recipient Shareholders who are granted
Primary or Secondary Options to purchase Shares in paragraphs 5.2 and 5.3
must in the aggregate exercise their options to purchase all of the Shares
proposed to be transferred by the transferring Shareholder or forfeit their
options.
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6. PURCHASE OPTION UPON DEATH. Upon the death of:
a. a Shareholder who is an individual;
b. a Grantor of a trust holding Shares; or
c. an Owner of an Individual Retirement Account, which holds Shares.
if Shares are to be transferred to any person or entity other than the
Corporation, an Eligible Recipient, or a Representative, then within thirty
(30) days after death, written notice of the transfer shall be given to the
Corporation and the remaining Non-Charity Eligible Recipient Shareholders by
the following, as appropriate:
a. the personal representative of the Deceased Shareholder's estate;
b. the Trustee; or
c. the Custodian or Trustee of an Individual Retirement Account.
The Corporation or the remaining Non-Charity Eligible Recipient Shareholders
within one hundred twenty (120) days after the Corporation's receipt of
actual notice of the transfer in the case of a Primary Option, and within one
hundred fifty (150) days after such event in the case of a Secondary Option,
may exercise an option to purchase all but not less than all of the Shares so
transferred in the same manner and upon the same terms as provided in
paragraph 5 with respect to Shares to be transferred.
7. PURCHASE OPTION UPON INVOLUNTARY TRANSFER. If other than by reason
of a Shareholder's death, Shares are transferred by operation of law to any
person other than the Corporation, an Eligible Recipient or a Representative
(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), the Shareholder owning such Shares shall
immediately give written notice to the Corporation and to the remaining
Non-Charity Eligible Recipient Shareholders of such transfer. The
Corporation or the remaining Non-Charity Eligible Recipient Shareholders
within one hundred twenty (120) days of the Corporation's receipt of actual
notice of the transfer in the case of a Primary Option, and within one
hundred fifty (150) days of such event in the case of a Secondary Option, may
exercise an option to purchase all but not less than all of the Shares so
transferred in the same manner and upon the same terms as provided in
paragraph 5 with respect to Shares proposed to be transferred.
8. EXERCISE OF OPTION. The Corporation or Non-Charity Eligible
Recipient Shareholders shall exercise the Options
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granted in paragraphs 5, 6, or 7 by delivering written notice of their
exercise of the option, within the times provided in said paragraphs, to the
Shareholder in the case of a paragraph 5 option, to the individuals indicated
in paragraph 6 in the case of a paragraph 6 option, to the transferee in the
case of a paragraph 7 option, and to the Corporation in all cases.
9. EFFECT OF NON-EXERCISE OF OPTIONS. If the purchase options granted
in paragraphs 5, 6, and 7 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.
10. CHANGE OF ENTITY OWNERSHIP. If a Shareholder is an Entity:
a. any intended change in ownership of the Entity which will
result in the Entity no longer being an Eligible Recipient Shareholder, shall
constitute a transfer of Shares governed by paragraph 5;
b. any change in ownership of the Entity as a result of death
which results in the Entity no longer being an Eligible Recipient
Shareholder, shall constitute a transfer of Shares governed by paragraph 6;
c. any change in ownership of the Entity as a result of an
involuntary transfer that results in the Entity no longer being an Eligible
Recipient Shareholder, shall constitute a transfer of Shares governed by
paragraph 7.
11. PURCHASE OPTION FOR SHARES HELD BY CHARITY SHAREHOLDER. All Shares
transferred to or held by a Charity shall be subject to an option by the
Corporation to purchase any or all of such Shares at any time, as set forth
in the Charity Shareholder Agreement.
12. 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 of Shares available to the Corporation on the date of closing;
except, however, in the case of a purchase of Shares under paragraph 5 of
this Agreement, if the price, if any, offered by the proposed transferee is
less than the purchase price hereunder, the price offered by the proposed
transferee shall be the price of the Shares to be purchased under this
Agreement. 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. The expense of determining the
appraised value shall be borne by the Corporation. An appraisal of the Shares
delivered to any department, division, or subsidiary of the Corporation may
be utilized under this paragraph.
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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.
13. PAYMENT OF THE PURCHASE PRICE.
13.1 PAYMENT TERMS. The purchase price for Shares purchased
pursuant to any of the options granted in this Agreement shall be paid in
cash at closing; except, however, in the event of a sale to the Corporation,
the Corporation may elect to pay the purchase price in installments as
follows:
(a) 25% of the purchase price at the closing; and
(b) The balance of the purchase price in three (3) equal consecutive
annual amortized installments, including interest at a fixed
annual rate at the date of closing 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.
13.2 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 selling party. The note shall
be unsecured and shall be in substantially the form of that set forth in
Exhibit C.
13.3 LIFE INSURANCE BENEFITS. Notwithstanding paragraph 13.1, if,
pursuant to paragraph 18 and Exhibit D herein, the Corporation is the owner
and beneficiary of insurance on the life of a deceased Shareholder from whose
estate the Corporation is purchasing Shares, an amount equal to the death
benefits payable to the beneficiary under the policy or policies shall be
paid by the Corporation in cash to the estate of the deceased Shareholder on
account of the purchase price of the Shares and only the balance, if any, may
be deferred as provided in paragraph 13.1. If the insurance proceeds exceed
the purchase price of the Shares, the excess shall be the property of the
Corporation.
14. THE CLOSING.
14.1 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 6,
the closing shall take place within one hundred forty (140) days after death.
In the case of a purchase of Shares under
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paragraphs 5, 7, or 11, the closing shall take place ten (10) days after the
delivery to the selling party of written notice by the purchasing party of
its exercise of the option to purchase the selling party's Shares.
14.2 DOCUMENTS. At the closing of the sale and purchase, the
selling and purchasing parties 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.
15. LEGEND ON CERTIFICATES. All Shares now or hereafter owned by the
Shareholders shall be subject to the provisions of this Agreement and each
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 Shares represented by this
certificate is subject to an agreement, restricting transfer or acquisition
of the shares. A copy of the 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, the Current Shareholders shall
immediately temporarily surrender their stock certificates to the Corporation
and the Corporation shall cause the above legend to be placed thereupon
before returning the certificates.
16. REISSUED SHARES. The Corporation shall have the right to
substitute or reissue stock in exchange for the Shares in the event of
merger, consolidation, name change, sale, spin off or other corporate
reorganization as long as said corporate action does not result in the
Corporation's stock being publicly traded, in which event this Agreement
shall automatically terminate. Substituted or reissued stock shall be subject
to the terms of this Agreement.
17. TERMINATION.
17.1 EVENTS CAUSING TERMINATION. This Agreement and all
restrictions on stock transfers 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, or on the execution of a
written instrument by the Corporation and the parties who then own Shares
subject to this Agreement which terminates the same.
17.2 SURVIVAL OF RIGHTS AND REMEDIES. The termination of this
Agreement for any reason shall not affect any right or
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remedy existing hereunder prior to the effective date of termination hereof.
18. INSURANCE ON SHAREHOLDERS' LIVES. The Corporation may insure or
partially insure the purchase options stated in paragraph 6. The Corporation
has purchased and become the owner and beneficiary of insurance policies on
the lives of the Shareholders listed on Exhibit D hereto (the "Policies").
The Corporation shall be obligated to continue the Policies in force during
the term of this Agreement. If the Corporation fails to make premium
payments necessary to keep the Policies in force, the insured Shareholder
shall have the right to pay the premiums, and the Corporation shall be
obligated to reimburse such Shareholder on demand. All such payments by an
insured Shareholder shall bear interest at the maximum legal rate in effect
on the date of payment.
The Corporation may also purchase and become the owner and beneficiary of and
may, but shall not be obligated to continue in force, from time to time,
insurance policies on the lives of other Shareholders and additional policies
on the lives of those individuals listed in Exhibit D. Insurance proceeds
received by the Corporation pursuant to this paragraph shall not be subject
to the provisions of paragraph 13.3.
19. GENERAL PROVISIONS.
19.1 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.
19.2 AMENDMENT. This Agreement shall not be modified, amended or
changed except by written document executed by the Corporation and by
Shareholders owning at least 80% of the Shares subject to this Agreement.
19.3 GOVERNING LAW. This Agreement shall be governed for all
purposes by the laws of the State of Montana.
19.4 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
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which it is held invalid or unenforceable, shall not be affected thereby and
shall continue in full force and effect.
19.5 NOTICES. All notices provided for by this Agreement shall be
in writing and shall be given either: (1) by actual delivery of the notice
into the hands of the parties thereunto entitled; or (2) by mailing the
notice in the U.S. mail to the last known address of the party entitled
thereto, certified mail, return receipt requested. 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
a Shareholder shall be given on the form of notice attached hereto as Exhibit
E.
19.6 BINDING EFFECT. This Agreement is binding upon and inures to
the benefit of the Corporation and the Shareholders and their respective
heirs, personal representatives, successors and assigns, and the Shareholders
by the signing hereof direct his or her personal representatives to open
their estates promptly in the court of proper jurisdiction and execute,
procure and deliver all documents, including, but not limited to appropriate
orders of such court and estate and inheritance tax waivers, as shall be
required to effectuate the purposes of this Agreement.
19.7 TIME. Time shall be of the essence of this Agreement.
19.8 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.
19.9 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding of the parties, and supersedes any and all prior
negotiations and understandings, and in particular supersedes the terms and
conditions of that certain Shareholders' Agreement dated September 23, 1994,
and amended September 7, 1995.
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19.10 COUNTERPART SIGNATURES. This Agreement may be executed in
counterparts which together shall constitute one original.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date set forth on page 1.
FIRST INTERSTATE BANCSYSTEM,
INC.
By /s/ Thomas W. Scott
--------------------------------
Thomas W. Scott, President
Attest:
/s/ Terrill R. Moore
- ---------------------------------
Terrill R. Moore, Secretary
"CORPORATION"
DAN S. SCOTT TRUST
/s/ Dan S. Scott Date December 16, 1998
- --------------------------------- -------------------------
Dan S. Scott, Trustee
NBAR5 LIMITED PARTNERSHIP
/s/ Randy Scott Date October 29, 1998
- --------------------------------- -------------------------
General Partner
NBAR5 A
/s/ Dan S. Scott Date December 16, 1998
- --------------------------------- -------------------------
Managing Partner
NBAR5 K
/s/ Dan S. Scott Date December 16, 1998
- --------------------------------- -------------------------
Managing Partner
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NBAR5 O
/s/ Dan S. Scott Date December 16, 1998
- --------------------------------- -------------------------
Managing Partner
NBAR5 S
/s/ Dan S. Scott Date December 16, 1998
- --------------------------------- -------------------------
Managing Partner
NBAR5 T
/s/ Dan S. Scott Date December 16, 1998
- --------------------------------- -------------------------
Managing Partner
JEANNE I. SCOTT TRUST
/s/ Jeanne I. Scott Date December 16, 1998
- --------------------------------- -------------------------
Jeanne I. Scott Trust, By First
Interstate - Wyoming, Trustee
For Jeanne I. Scott
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Trustee
RANDALL ISHAM SCOTT TRUST
/s/ Randall Isham Scott Date October 29, 1998
- --------------------------------- -------------------------
Randall Isham Scott Trust, as
Beneficial Owner, Randall
Isham Scott Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
LYNETTE E. SCOTT REVOCABLE TRUST
/s/ Lynette E. Scott Date December 2, 1998
- --------------------------------- -------------------------
Lynette E. Scott as Trustee of
The Lynette E. Scott Revocable
Trust dated 1/3/94
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RONALD NOEL SCOTT TRUST
/s/ Ronald Noel Scott Date December 16, 1998
- --------------------------------- -------------------------
Ronald Noel Scott Trust, by First
Interstate Bank - Wyoming, Co-
Trustees
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
By /s/ Homer Scott, Jr. Date December 16, 1998
- --------------------------------- -------------------------
Chairman, First Interstate Bank,
Co-Trustee
RIKI RAE SCOTT DAVIDSON TRUST
/s/ Riki Davidson Date December 1, 1998
- --------------------------------- -------------------------
Riki Rae Scott Davidson, as
Beneficial Owner of Riki Rae
Scott Davidson Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
By /s/ Homer Scott, Jr. Date December 16, 1998
- --------------------------------- -------------------------
Chairman, First Interstate Bank,
Co-Trustee
RISA KAE SCOTT BROWN TRUST
/s/ Homer A. Scott, Jr. Date December 1, 1998
- --------------------------------- -------------------------
Homer A. Scott, Jr., Co-Trustee
for Risa Kae Scott Brown, by
First Interstate - Wyoming, Co-
Trustee under a trust agreement
Dated 7/30/78
By /s/ Robert L. Leibrich Date December 1, 1998
- --------------------------------- -------------------------
Robert L. Leibrich
Vice President
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RAE ANN SCOTT TRUST
/s/ Homer A. Scott, Jr. Date December 1, 1998
- --------------------------------- -------------------------
Homer A. Scott, Jr., Co-Trustee
for Rae Ann Scott, by
First Interstate - Wyoming, Co-
Trustee under a trust agreement
Dated 9/18/80
By /s/ Robert L. Leibrich Date December 1, 1998
- --------------------------------- -------------------------
Robert L. Leibrich
Vice President
HOMER SCOTT, JR. TRUST
/s/ Homer Scott, Jr. Date November 4, 1998
- --------------------------------- -------------------------
Homer Scott, Jr. as Beneficial
Owner of Homer Scott, Jr. Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
HOMER SCOTT, JR. CHARITABLE
REMAINDER UNITRUST
By /s/ Robert L. Leibrich Date November 4, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
JANET E. SCOTT TRUST
/s/ Janet E. Scott Date November 5, 1998
- --------------------------------- -------------------------
Janet E. Scott as Beneficial
Owner of Janet E. Scott Trust
under trust agreement dated
1/7/83
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
14
<PAGE>
SUSAN ELIZABETH SCOTT BAKER TRUST
/s/ Susan Elizabeth Scott Baker Date November 5, 1998
- --------------------------------- -------------------------
Susan Elizabeth Scott Baker as
Beneficial Owner of Susan Elizabeth
Scott Baker Trust under trust
agreement dated 2/14/76
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank - Trustee
JAMES MARSHALL SCOTT TRUST
By /s/ Robert L. Leibrich Date November 5, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
HOMER ROLLINS SCOTT TRUST
By /s/ Robert L. Leibrich Date November 5, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
SANDRA ARLENE SCOTT SUZOR TRUST
By /s/ Robert L. Leibrich Date November 5, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
SARA E. SUZOR
By First Interstate Bank - Wyoming,
Custodian for Sara E. Suzor, Wugma
By /s/ Robert L. Leibrich Date November 4, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming
SAMUEL MOISE SUZOR
By First Interstate Bank - Wyoming,
Custodian for Samuel Moise Suzor,
Wugma
By /s/ Robert L. Leibrich Date November 4, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming
15
<PAGE>
BAYLEE MAE BAKER SECTION 2503(c)
TRUST
By /s/ Robert L. Leibrich Date November 4, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
BREKKEN ARLENE BAKER SECTION 2503(c)
TRUST
By /s/ Robert L. Leibrich Date November 4, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
BLAKE SCOTT BAKER SECTION 2503(c)
TRUST
By /s/ Robert L. Leibrich Date November 4, 1998
- --------------------------------- -------------------------
Vice President, First Interstate
Bank - Wyoming, Trustee
THOMAS W. SCOTT
/s/ Thomas W. Scott Date November 16, 1998
- --------------------------------- -------------------------
Thomas W. Scott
JOAN SCOTT
/s/ Joan Scott Date November 16, 1998
- --------------------------------- -------------------------
Joan Scott
JULIE SCOTT ASLAKSON TRUST
/s/ Julie Scott Aslakson Date November 18, 1998
- --------------------------------- -------------------------
Julie Scott Aslakson as
Beneficial Owner, Julie Scott
Aslakson Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
16
<PAGE>
JONATHAN R. SCOTT TRUST
/s/ Jon R. Scott Date October 29, 1998
- --------------------------------- -------------------------
Jonathan Rodney Scott as
Beneficial Owner, Jonathan
Rodney Scott Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
SUSAN SCOTT HEYNEMAN REVOCABLE
TRUST
/s/ Susan Scott Heyneman Date November 1, 1998
- --------------------------------- -------------------------
Susan Scott Heyneman as
Beneficial Owner, Susan Scott
Heyneman Revocable Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Trustee
TOWANDA INVESTMENTS LIMITED
PARTNERSHIP
/s/ John M. Heyneman, Jr. Date November 19, 1998
- --------------------------------- -------------------------
Towanda Investments Limited
Partnership, John M. Heyenman,
Jr., Managing Partner
JOHN M. HEYNEMAN
/s/ John M. Heyneman Date November 1, 1998
- --------------------------------- -------------------------
John M. Heyneman
JOHN M. HEYNEMAN, JR. TRUST
/s/ John M. Heyneman, Jr. Date November 19, 1998
- --------------------------------- -------------------------
John M. Heyneman, Jr., as
Beneficial Owner, John M.
Heyneman, Jr. Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
17
<PAGE>
THOMAS S. HEYNEMAN
/s/ Thomas S. Heyneman Date November 5, 1998
- --------------------------------- -------------------------
Thomas S. Heyneman
THOMAS S. HEYNEMAN
CUSTODIAN FOR JACOB RYAN
HEYNEMAN UNDER UTMA
By /s/ Thomas S. Heyneman Date November 5, 1998
- --------------------------------- -------------------------
Custodian for Jacob Heyneman
THOMAS S. HEYNEMAN
CUSTODIAN FOR SPENCER
HEYNEMAN UNDER UTMA
By /s/ Thomas S. Heyneman Date November 5, 1998
- --------------------------------- -------------------------
Custodian for Spencer Heyneman
THOMAS S. HEYNEMAN TRUST
/s/ Thomas S. Heyneman Date November 5, 1998
- --------------------------------- -------------------------
Thomas Scott Heyneman as
Beneficial Owner, Thomas
Scott Heyneman Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
CHARLES MATTHEW HEYNEMAN
/s/ Charles Matthew Heyneman Date November 19, 1998
- --------------------------------- -------------------------
Charles Matthew Heyneman
CHARLES MATTHEW HEYNEMAN TRUST
/s/ Charles Matthew Heyneman Date November 19, 1998
- --------------------------------- -------------------------
Charles Matthew Heyneman, as
Beneficial Owner, Charles Matthew
Heyneman Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
18
<PAGE>
ALEXANDER PAUL HEYNEMAN
/s/ Alexander Paul Heyneman Date November 1, 1998
- --------------------------------- -------------------------
Alexander Paul Heyneman
ALEXANDER PAUL HEYNEMAN TRUST
/s/ Alexander Paul Heyneman Date November 1, 1998
- --------------------------------- -------------------------
Alexander Paul Heyneman, as
Beneficial Owner, Alexander
Paul Heyneman Trust
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank, Co-Trustee
ALEXANDER PAUL HEYNEMAN
CUSTODIAN, ALEXANDER PAUL
HEYNEMAN, JR. UNDER UTMA
By /s/ Alexander Paul Heyneman Date November 1, 1998
- --------------------------------- -------------------------
ALEXANDER PAUL HEYNEMAN
CUSTODIAN, ALLISON HEYNEMAN
UNDER UTMA
By /s/ Alexander Paul Heyneman Date November 1, 1998
- --------------------------------- -------------------------
ALEXANDER PAUL HEYNEMAN
CUSTODIAN, ANDREA HEYNEMAN
UNDER UTMA
By /s/ Alexander Paul Heyneman Date November 1, 1998
- --------------------------------- -------------------------
H. C. ARIN WADDELL
/s/ H. C. Arin Waddell Date November 4, 1998
- --------------------------------- -------------------------
H. C. Arin Waddell
19
<PAGE>
JAMES R. SCOTT, CONSERVATOR
ESTATE OF JAMES F. HEYNEMAN
By /s/ James R. Scott Date November 15, 1998
- --------------------------------- -------------------------
James R. Scott
By /s/ Dick Fellows Date December 16, 1998
- --------------------------------- -------------------------
Senior Vice President, First
Interstate Bank as Co-Trustee for
The James F. Heyneman Trust
JAMES R. SCOTT TRUST
/s/ James R. Scott Date November 15, 1998
- --------------------------------- -------------------------
James R. Scott as Beneficial
Owner, James R. Scott Trust
J. S. INVESTMENTS LIMITED
PARTNERSHIP
/s/ James R. Scott Date November 15, 1998
- --------------------------------- -------------------------
J. S. Investments Limited
Partnership by James R. Scott,
General Partner
JAMES SCOTT, JR.
/s/ James Scott, Jr. Date November 15, 1998
- --------------------------------- -------------------------
James R. Scott, Jr.
COURTNEY L. SCOTT
By /s/ Christine M. Scott Date November 15, 1998
- --------------------------------- -------------------------
Christine M. Scott as Custodian
For Courtney L. Scott under
MT Uniform Gifts to Minors Act
DANA ALEXANDRA SCOTT
By /s/ Christine M. Scott Date November 15, 1998
- --------------------------------- -------------------------
Christine M. Scott as Custodian
For Dana Alexandra Scott under
MT Uniform Gifts to Minors Act
20
<PAGE>
CHARITY SHAREHOLDER'S AGREEMENT
THIS AGREEMENT is made this _____ day of __________, 1999, by and
between ________________________, herein referred to as "Shareholder", and
FIRST INTERSTATE BANCSYSTEM, INC., a Montana corporation, with mailing
address at 401 North 31st Street, Billings, Montana 59101, herein referred to
as the "Corporation".
WITNESSETH:
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.
C. The Corporation and Shareholder desire to obligate each other to
sell and purchase Shares under specified circumstances, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein, IT IS
AGREED:
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, any
or all of the Shares now 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. 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 intention to sell
Shares, shall state (i) the 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.
3. PURCHASE OPTION UPON INVOLUNTARY TRANSFER. If 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, or a
purchaser at any creditor's or court-ordered sale), Shareholder shall
immediately give written notice to the Corporation of such transfer. The
Corporation, within ninety (90) days after 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.
4. GENERAL PURCHASE OPTION. The Corporation has the option,
exercisable at any time, to purchase all or any portion of the Shares, as
determined by the Corporation.
5. EXERCISE OF OPTIONS. The Corporation may exercise any of the
Options granted in paragraphs 2, 3, or 4 by delivering written notice of its
exercise of the option to the Shareholder in the case of a paragraph 2 or 4
option or to the transferee in the case of a paragraph 3 option.
1
<PAGE>
6. EFFECT OF NON-EXERCISE OF OPTIONS. If the purchase options are
forfeited or are 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.
7. 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; except, however, if the price offered
by a proposed transferee under paragraph 2 is less than the appraised value
set forth above, then the purchase price offered by the proposed transferee
shall be the purchase price for such Shares. 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.
The expense of determining the appraised value shall be borne by the
Corporation. An 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.
8. PAYMENT OF THE PURCHASE PRICE. The purchase price for Shares shall
be paid in cash at closing.
9. THE CLOSING.
9.1 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. The closing
shall take place ten (10) days after the delivery of the Corporation's
written notice of its exercise of the option to purchase the Shareholder's
Shares.
9.2 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 and
the assignment and delivery of stock certificates free and clear of all
taxes, debts, claims, judgments, liens or encumbrances whatsoever.
10. LEGEND ON CERTIFICATES. All Shares now or hereafter owned by
Shareholder shall be subject to the provisions of this Agreement, and the
certificates representing such Shares shall bear the following legend
reciting the existence of the Agreement:
The sale, transfer or encumbrance of shares represented by this
certificate is subject to an agreement restricting transfer or
acquisition of the shares. A copy of the 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, Shareholder shall immediately and
temporarily surrender Stockholder's stock certificates to the Corporation,
and the Corporation shall cause the above legend to be placed thereon before
returning the certificates.
11. 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.
2
<PAGE>
12. TERMINATION.
12.1 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 (a) the occurrence of the bankruptcy, receivership or
dissolution of the Corporation, (b) the public trading of the Corporation's
common stock, or (c) 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.
12.2 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.
13. 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.
14. 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.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Montana.
16. 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.
17. 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 A. A party wishing to change
its designated address shall do so by notice in writing to the other party.
18. BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the Corporation and the Shareholder and their respective
successors and assigns.
19. TIME. Time shall be of the essence of this Agreement.
20. 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.
21. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties, and supersedes any and all prior negotiations
and understandings.
3
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth on page 1.
FIRST INTERSTATE BANCSYSTEM, INC.
By
-------------------------------------
Its
------------------------------------
"Corporation"
Name:
----------------------------------
Address:
-------------------------------
-------------------------------
"Shareholder"
4
<PAGE>
EXHIBIT A
NOTICE
TO: First Interstate BancSystem, Inc.
401 North 31st Street
Billings, MT 59101
Pursuant to the Charity Shareholder's Agreement 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 involuntary transfer of Shareholder's Shares to:
- ---------- Name and address of transferee:
---------------------------
---------------------------
---------------------------
Dated:
-----------------
Name of Shareholder:
------------------------------------
Address of Shareholder
-----------------------------------
-----------------------------------
5
<PAGE>
[LETTERHEAD OF HOLLAND & HART LLP]
April 22, 1999
First Interstate BancSystems, Inc.
401 North 32st 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, as amended (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, 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, 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 April 22, 1999 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>
First Interstate BancSystems, Inc.
April 22, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Holland & Hart LLP
Holland & Hart LLP
<PAGE>
Ex 23.1
[LOGO]
P.O. Box 7108
Billings, MT 59103
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
January 29, 1999, relating to the consolidated balance sheets of First
Interstate BancSystem, Inc. and subsidiaries as of December 31, 1998 and
1997, and the related consolidated statements of income, stockholders' equity
and comprehensive income, and cash flows for each of the years in the
three-year period ended December 31, 1998, which report appears in the
December 31, 1998 annual report on Form 10-K of First Interstate BancSystem,
Inc.
We consent to incorporation by reference in this same registration statement
to be filed on Form S-8 of First Interstate BancSystem, Inc. of our report
dated June 1, 1998, relating to the statements of net assets available for
benefits of the Savings and Profit Sharing Plan for Employees of First
Interstate BancSystem, Inc. as of December 31, 1997 and 1996 and the related
statement of changes in net assets available for benefits for the year ended
December 31, 1997, which report appears in the December 31, 1997 annual
report on Form 11-K of the Savings and Profit Sharing Plan for Employees of
First Interstate BancSystem, 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 LLP
Billings, Montana
April 21, 1999
