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U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999.
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[ ] TRANSITION REPORT PURSUANT SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to ________________.
Commission file number 000-25295
FIRSTIER BANCORP, INC.
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(Exact name of small business issuer as specified in its charter)
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<S> <C>
Colorado 47-0484682
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(State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.)
</TABLE>
11210 Huron, Northglenn, CO. 80234
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(Address of principal executive offices, including zip code)
(303) 451-1010
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(Issuer's telephone number)
First Western Corp.
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(Former name, former address and former fiscal year, if
changed since last report.)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12
months (or for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days. Yes X No
---- ----
As of September 30, 1999, there were 7,579,667 shares of the
registrant's common stock outstanding.
Transitional Small Business Disclosure Format (check one): Yes No X
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FIRSTIER BANCORP, INC.
TABLE OF CONTENTS
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PART I FINANCIAL INFORMATION PAGE NO.
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Item 1. Financial Statements 2
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 7
PART II. OTHER INFORMATION
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Item 4. Submission of Matters to a Vote of Security Holders 13
Item 6. Exhibits and Reports on Form 8-K 13
</TABLE>
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
FIRSTIER BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
September 30, 1999 (Unaudited) and December 31, 1998
(In thousands)
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<CAPTION>
September 30, December 31,
1999 1998
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(Unaudited)
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ASSETS
Cash and due from banks .................................................... $ 26,975 $ 13,892
Interest bearing deposits in other banks ................................... -- 3
Federal funds sold ......................................................... 2,500 13,270
Investment securities:
Available-for-sale, at fair value ........................................ 39,361 27,082
Held-to-maturity, at amortized cost, fair value of $6,200, in 1999 and
$7,250, in 1998 ....................................................... 6,154 7,146
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Total investment securities ....................................... 45,515 34,228
Loans held for sale ........................................................ 2,948 5,193
Gross loans receivable: .................................................... 517,549 290,875
Less: unearned loan fees ................................................. (1,706) (886)
allowance for loan losses .......................................... (4,364) (2,187)
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Net loans receivable .............................................. 511,479 287,802
Premises and equipment, net ................................................ 10,437 8,308
Preferred securities issuance cost, net .................................... 1,092 --
Other assets ............................................................... 7,198 4,511
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TOTAL ASSETS ...................................................... $ 608,144 $ 367,207
========== ==========
LIABILITIES
Deposits:
Demand non-interest bearing .............................................. $ 56,184 $ 44,653
Demand interest bearing .................................................. 18,586 14,919
Time ..................................................................... 441,696 259,908
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Total deposits .................................................... 516,466 319,480
Federal funds sold and securities sold under agreements to repurchase ...... 20,268 5,080
Note payable ............................................................... 11,750 8,790
Federal Home Loan Bank borrowings .......................................... 8,593 8,650
Other liabilities .......................................................... 3,739 3,818
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Total liabilities ................................................. 560,816 345,818
Minority interest in consolidated subsidiaries ............................. -- 683
Company obligated mandatorily redeemable preferred securities of subsidiary
trust holding solely Junior Subordinated Debentures ...................... 23,000 --
STOCKHOLDERS' EQUITY
Preferred stock, 20,000,000 shares authorized; no shares issued and
outstanding at December 31, 1998 and September 30, 1999 (unaudited)..... -- --
Common stock, 50,000,000 shares authorized; shares issued and outstanding :
7,346,673 at December 31, 1998 and 7,579,667 at September 30, 1999
(unaudited) ............................................................ 1,520 837
Retained earnings .......................................................... 22,904 19,460
Accumulated other comprehensive income ..................................... (96) 409
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Total stockholders' equity ........................................ 24,328 20,706
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TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY ........................ $ 608,144 $ 367,207
========== ==========
</TABLE>
These consolidated financial statements should be read only in connection with
the accompanying notes to consolidated financial statements.
2
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FIRSTIER BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Three months ended September 30, 1999 and 1998 (Unaudited) and nine months ended
September 30, 1999 and 1998 (Unaudited)
(In thousands, except share and per share data)
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<CAPTION>
Three months ended September 30, Nine months ended September 30,
1999 1998 1999 1998
------------- -------------- ------------ --------------
(Unaudited) (Unaudited) (Unaudited) (Unaudited)
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Interest income:
Loans, including fees ...................................... $ 12,178 $ 6,612 $ 29,820 $ 16,808
Taxable investment securities .............................. 531 392 1,340 775
Nontaxable investment securities ........................... 128 126 390 369
Dividends on investment securities ......................... 11 15 36 56
Federal funds sold ......................................... 132 381 546 707
------------ ------------ ------------ ------------
Total interest income ............................... 12,980 7,526 32,132 18,715
------------ ------------ ------------ ------------
Interest expense:
Deposits ................................................... 5,770 3,406 14,265 8,185
Federal funds purchased .................................... 36 2 60 8
Securities sold under agreements to repurchase ............. 56 33 157 75
Note payable ............................................... 66 72 150 182
Trust preferred securities ................................. 545 -- 1,360 --
Federal Home Loan Bank borrowings .......................... 138 116 392 305
------------ ------------ ------------ ------------
Total interest expense .............................. 6,611 3,629 16,384 8,755
------------ ------------ ------------ ------------
Net interest income ................................. 6,369 3,897 15,748 9,960
Provision for loan losses .................................... 745 60 2,174 180
------------ ------------ ------------ ------------
Net interest income after provision for loan losses .......... 5,624 3,837 13,574 9,780
------------ ------------ ------------ ------------
Non-interest income:
Fees for other customer services ........................... 559 229 1,431 726
Net gains from sale of loans ............................... 78 266 672 716
Commissions and fees from brokerage activities ............. 67 72 248 133
Investment securities transactions, net .................... -- 1 -- (3)
Other operating income ..................................... 150 209 402 409
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Total non-interest income ........................... 854 777 2,753 1,981
------------ ------------ ------------ ------------
Non-interest expenses:
Salaries and employee benefits ............................. 2,175 1,412 5,851 3,545
Net occupancy expense of premises .......................... 590 485 1,620 1,107
Purchased services ......................................... 569 458 1,324 906
Office supplies ............................................ 118 81 347 233
Minority interest in income of consolidated subsidiaries ... -- 33 -- 93
Other operating expenses ................................... 661 414 1,910 1,159
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Total non-interest expenses ......................... 4,113 2,883 11,052 7,043
------------ ------------ ------------ ------------
Income before income taxes .......................... 2,365 1,731 5,275 4,718
Income tax expense ........................................... 868 682 1,825 1,765
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NET INCOME ................................................... $ 1,497 $ 1,049 $ 3,450 $ 2,953
============ ============ ============ ============
Other comprehensive income:
Unrealized holding gains (losses) arising during the
period .................................................. (198) (26) (819) 6
Unrealized holding gains (losses) arising during prior
periods, realized during current period ................. 1 -- 45 --
Income tax (expense) benefit related to items of other
comprehensive income .................................... 67 9 263 (2)
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Other comprehensive income (loss), net of tax ....... (130) (17) (511) 4
------------ ------------ ------------ ------------
COMPREHENSIVE INCOME ......................................... $ 1,367 $ 1,036 $ 2,939 $ 2,957
============ ============ ============ ============
Income per share:
Basic and diluted earnings per share ......................... $ 0.20 $ 0.14 $ 0.46 $ 0.40
============ ============ ============ ============
Weighted average shares outstanding ...................... 7,579,667 7,346,673 7,527,891 7,346,673
============ ============ ============ ============
</TABLE>
These consolidated financial statements should be read only in connection with
the accompanying notes to consolidated financial statements.
3
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FIRSTIER BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Nine months ended September 30, 1999 and 1998 (Unaudited)
(In thousands)
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Nine months ended September 30,
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1999 1998
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(Unaudited) (Unaudited)
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Cash flows from operating activities:
Net income ..................................................................... $ 3,450 $ 2,953
Adjustments to reconcile net income to cash provided by operating
activities:
Provision for loan losses ................................................. 2,177 180
Depreciation and amortization ............................................. 873 493
Net gains from sale of loans .............................................. (672) (4,716)
Proceeds from sale of loans held for sale ................................. 44,190 40,660
Origination of loans held for sale ........................................ (41,273) (41,074)
Investment securities transactions, net ................................... 283 3
Increase in minority interest in consolidated subsidiaries ................ -- 2
Changes in deferrals and accruals:
Other assets .............................................................. (1,188) (545)
Other liabilities ......................................................... (1,792) 740
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Net cash provided by operating activities ............................... 6,048 2,696
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Cash flows from investing activities:
Net (increase) decrease in federal funds sold ............................... 10,770 (1,170)
Net (increase) decrease in interest bearing deposits in other banks ......... 3 143
Purchase of investment securities available-for-sale ........................ (71,081) (90,942)
Purchase of investment securities held-to-maturity .......................... (127) --
Proceeds from sale of investment securities available-for-sale .............. -- 30,154
Proceeds from maturities/paydowns of investment securities .................. 39,127 44,956
Net increase in loans ....................................................... (225,854) (83,267)
Expenditures for bank premises and equipment ................................ (2,950) (2,734)
Proceeds from sale of real estate owned ..................................... 162 --
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Net cash used in investing activities ................................... (229,950) (102,860)
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Cash flows from financing activities:
Net increase in deposits .................................................... 196,986 93,750
Net increase (decrease) in securities sold under agreements to repurchase ... 15,188 516
Advances from Federal Home Loan Bank ........................................ -- 7,500
Payments on Federal Home Loan Bank advances ................................. (57) --
Proceeds from note payable .................................................. 11,750 3,850
Payments on note payable .................................................... (8,790) (1,430)
Proceeds from trust preferred securities .................................... 23,000 --
Debt issuance cost .......................................................... (1,092) --
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Net cash provided by financing activities ............................... 236,985 104,186
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Net increase in cash and due from banks .......................................... 13,083 4,022
Cash and due from banks at beginning of period ................................... 13,892 10,427
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Cash and due from banks at end of period ......................................... $ 26,975 $ 14,449
========== ==========
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest .................................................................. $ 17,682 $ 8,631
Income taxes .............................................................. 2,004 1,444
Noncash transactions:
Conversion of loans to other real estate owned .............................. 91 761
Issuance of shares for minority interest of Firstate Bank ................... 683 --
</TABLE>
These consolidated financial statements should be read only in connection with
the accompanying notes to consolidated financial statements.
4
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FIRSTIER BANCORP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three month period ended September 30, 1999 and 1998 (Unaudited)
1. Summary of significant account policies
The accompanying unaudited interim financial statements have been
prepared in accordance with the instructions for Form 10-QSB and do not
include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. All
adjustments that are, in the opinion of management, of a normal
recurring nature necessary for a fair statement of results for the
interim periods presented have been made. The results of operations for
such interim periods are not necessarily indicative of results of
operations for a full year. The statements should be read in
conjunction with the summary of significant accounting policies and
notes to consolidated financial statements included in the registration
statement of the Company declared effective on February 10, 1999 SEC
File Nos.333-67197 and 333-67197-01.
In the opinion of management, the accompanying financial statements
contain all adjustments necessary to present fairly the financial
position of the Company at September 30, 1999 and December 31, 1998,
and the results of operations and cash flows for the three and nine
month periods ended September 30, 1999 and 1998.
The consolidated financial statements include the accounts of the
Company's respective subsidiaries. All material intercompany
transactions have been eliminated.
2. Nature of Operations
FirsTier, a multibank holding company, offers full service community
banking through 15 banking locations in metropolitan Denver and
northern Colorado, and two banking locations in western and central
Nebraska. FirsTier's Colorado bank opened four new branches and a loan
production office during the first nine months of 1999.
3. Corporate Restructuring
On September 14, 1999 the company changed its state of incorporation to
Colorado and changed its name to FirsTier Bancorp, Inc. from First
Western Corp. As a result of the reincorporation, the Company's common
stock and surplus accounts have been combined. Also the Company
effected a 52.48 for one common stock split. All share and per share
amounts contained in these financial statements have been restated for
this reorganization.
4. 1999 Stock Incentive Plan
As of September 15, 1999 the Company adopted the 1999 Stock Incentive
Plan to provide incentives for eligible persons including employees,
non-employee directors and consultants to the company and its
subsidiaries. The total number of Company shares to be issued under
this plan shall not exceed 1,700,000 shares. Incentive awards may be
granted by the Company's Board of Directors under this plan. To date,
all stock options granted permit the holder to purchase, under certain
limitations, the Company's common stock at a price not less than 100%
of the market value of the stock on the date the option was granted.
These options terminate, contingent upon continued employment and other
factors, approximately 10 years from the date of grant. At the time of
the initial adoption of the plan, 500,000 shares were granted under
this plan to an executive officer. The exercise price per share is
$12.00 per share.
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5. Acquisition
In the first quarter of 1999, the Company exchanged 232,994 shares of
its common stock for the 8.6% of Firstate Bank (Kimball, NE) that it
did not own. Such minority shares were owned by individuals already
affiliated with the Company. As the Company and its four shareholders
at the time of the exchange owned 99.6% of the Nebraska bank and the
remaining 0.4% was owned by other persons who were affiliated with the
Company, it was determined by the boards of both entities that a book
value exchange ratio represented a fair value for all parties. The fair
value determined for this transaction was $683,000. No goodwill was
recognized in connection with this transaction.
6. Offering of Trust Preferred Securities by FW Capital I
On February 16, 1999 the Company and its wholly owned subsidiary FW
Capital I (the "Trust"), completed the sale of $23.0 million of 9.375%
Cumulative Trust Preferred Securities of the Trust. Net proceeds were
approximately $21.9 million after payment of sales commissions and
other offering costs, and were invested in Junior Subordinated
Debentures maturing February 16, 2029, issued by the Company to the
Trust in connection with the public offering.
Interest on the Junior Subordinated Debentures is paid by the Company
to the Trust. This interest is the sole revenue of the Trust and the
source for distributions by the Trust to the holders of the Trust
Preferred Securities.
For financial reporting purposes, the Trust is treated as a subsidiary
of the Company, and accordingly, the accounts of the Trust are included
in the consolidated financial statements of the Company. The Trust
Preferred Securities are presented as a separate line item in the
consolidated balance sheet under the caption "Company obligated
mandatorily redeemable preferred securities of subsidiary trust holding
solely Junior Subordinated Debentures." For financial reporting
purposes, the Company records distributions payable on the Trust
Preferred Securities as interest expense in the consolidated statements
of income.
The Junior Subordinated Debentures are unsecured and rank junior and
are subordinate to all senior debt of the Company and constitute a full
and unconditional guarantee on a subordinated basis by the Company of
the obligations of the Trust under the Preferred Securities.
7. Comprehensive Income
The Financial Accounting Standards Board (FASB) has issued SFAS No.
130, "Reporting Comprehensive Income", which is effective for the
fiscal years beginning after December 15, 1997. This statement
establishes standards for reporting and display of comprehensive income
and its components (revenue, expenses, gains and losses) in a full set
of general purpose financial statements. This statement requires that
all items that are required to be recognized under accounting standards
as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements. The Company adopted SFAS No. 130 on January 1, 1998.
Amounts formerly presented in Stockholder Equity as "Unrealized gains
on securities available for sale, net of taxes", are now reflected as
"Accumulated other comprehensive income".
6
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
The following discussion should be read in conjunction with the Consolidated
Financial Statements and related notes. FirsTier's future operating results may
be affected by various trends and factors, which are beyond FirsTier's control.
These include the factors set forth in "Risk Factors" and "Cautionary
Statements" included in the registration statement of the Company declared
effective on February 10, 1999 SEC File Nos. 333-67197 and 333-67197-01.
Accordingly, past results and trends may not be reliable indicators of future
results or trends. With the exception of historical information, the matters
discussed below include forward-looking statements that involve risks and
uncertainties. FirsTier cautions readers that a number of important factors
could affect FirsTier's actual results and cause actual results to differ
materially from those in the forward-looking statements.
RESULTS OF OPERATIONS
Net interest income for the Company increased $2.5 million (63%) from $3.9
million for the three month period ended September 30, 1998, to $6.4 million for
the three month period ended September 30, 1999 and $5.8 million (58%) from
$10.0 million for the nine month period ended September 30, 1998, to $15.7
million for the nine month period ended September 30, 1999. The major components
of this increase were:
1. Interest income increased $ 5.5 million (72%) from $7.5
million for the three month period ended September 30, 1998 to
$13.0 million for the three month period ended September 30,
1999 and increased $13.4 million (72%) from $18.7 million for
the nine month period ended September 30, 1998 to $32.1
million for the nine month period ended September 30, 1999.
This is a direct result of average earning assets increasing
$241.5 million (87%) from $278.3 million for the three month
period ended September 30, 1998 to $519.8 million for the
three month period ended September 30, 1999, and increasing
$194.6 million (75%) from $260.1 million for the nine month
period ended September 30, 1998 to $454.7 million for the nine
month period ended September 30, 1999. Most of the Company's
earning assets (91% at September 30, 1999) are loans, a large
portion of which have floating rates and are tied to the prime
rate.
2. Interest expense increased $ 3.0 million (82%) from $3.6
million for the three month period ended September 30, 1998 to
$6.6 million for the three month period ended September 30,
1999 and increased $7.6 million (87%) from $8.8 million for
the nine month period ended September 30, 1998 to $16.4
million for the nine month period ended September 30, 1999.
This is a result of average interest bearing liabilities
increasing $208.9 million (86%) from $242.2 million for the
three month period ended September 30, 1998 to $451.1 million
for the three month period ended September 30, 1999, and
increasing $176.5 million (79%) from $222.6 million for the
nine month period ended September 30, 1998 to $399.1 million
for the nine month period ended September 30, 1999.
3. Net interest margin decreased 0.70% (13% change) from 5.60%
for the three month period ended September 30, 1998 to 4.90%
for the three month period ended September 30, 1999 and
decreased 0.49% (10% change) from 5.11% for the nine month
period ended September 30, 1998 to 4.62% for the nine month
period ended September 30, 1999. The sources of these changes
are:
a) Yields on earning assets decreased 0.83% (8% change)
from 10.82% for the three month period ended
September 30, 1998 to 9.99% for the three month
period ended September 30, 1999, and decreased 0.17%
(2% change) from 9.59% for the nine month period
ended September 30, 1998 to 9.42% for the nine month
period ended September 30, 1999. This reflects the
impact of an average 0.75% decrease in the prime
lending rate.
b) Costs of interest bearing liabilities decreased 0.13%
(2% change) from 5.99% for the three month period
ended September 30, 1998 to 5.86% for the three month
period ended September 30, 1999, and increased 0.23%
(4% change) from 5.24% for the nine month period
ended September 30, 1998 to 5.47% for the nine month
period ended September 30, 1999. This is the result
of bonus rates paid during promotional campaigns
related to the grand openings of new branch
locations, the lagged impact of market interest rate
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reductions on fixed rate time deposits, as well as
the impact of $23.0 million of trust preferred
securities at 9.375% included in the liability mix.
Provision for loan losses increased by $685,000 (1,141%) from $60,000 for the
three month period ended September 30, 1998 to $745,000 for the three month
period ended September 30, 1999 and increased $2.0 million (1,108%) from
$180,000 for the nine month period ended September 30, 1998 to $2.2 million for
the nine month period ended September 30, 1999. In response to a sustained
significant growth rate in the Company's loan portfolio, management reviewed and
revised the methodology for estimating the adequacy of the allowance for loan
losses in the fourth quarter of 1998. The methodology was further revised in the
first quarter of 1999. The revised methodology permits a closer match between
period loan loss provisions and period loan originations.
Non-interest income increased $77,000 (10%) from $777,000 for the three month
period ended September 30, 1998 to $854,000 for the three month period ended
September 30, 1999 and increased $772,000 (39%) from $2.0 million for the nine
month period ended September 30, 1998 to $2.8 million for the nine month period
ended September 30, 1999. The two major components of the increase were:
1. Fees for other customer services increased $330,000 (144%)
from $229,000 for the three month period ended September 30,
1998 to $559,000 for the three month period ended September
30, 1999 and increased $705,000 (97%) from $726,000 for the
nine month period ended September 30, 1998 to $1.4 million for
the nine month period ended September 30, 1999. This increase
resulted from additional customer accounts at our branch
locations.
2. Net gains from sale of loans decreased $188,000 (71%) from
$266,000 for the three month period ended September 30, 1998
to $78,000 for the three month period ended September 30, 1999
and decreased $44,000 (6%) from $716,000 for the nine month
period ended September 30, 1998 to $672,000 for the nine month
period ended September 30, 1999. The Company experienced a
staffing turnover in the mortgage origination division in the
third quarter of 1999, which caused a temporary decrease in
the level of mortgage loans originated and sold. The vacant
positions have subsequently been filled.
Non-interest expense increased $1.2 million (43%) from $2.9 million for the
three month period ended September 30, 1998, to $4.1 million for the three month
period ended September 30, 1999 and $4.0 million (57%) from $7.0 million for the
nine month period ended September 30, 1998, to $11.1 million for the nine month
period ended September 30, 1999. The major components of the increase were:
1. Salaries and employee benefits increased $763,000 (54%) from
$1.4 million for the three month period ended September 30,
1998 to $2.2 million for the three month period ended
September 30, 1999 and increased $2.3 million (65%) from $3.5
million for the nine month period ended September 30, 1998 to
$5.9 million for the nine month period ended September 30,
1999. The increase is the result of staffing four additional
branch locations and a loan production office in 1999.
2. Net occupancy expense of premises increased $105,000 (22%)
from $485,000 for the three month period ended September 30,
1998 to $590,000 for the three month period ended September
30, 1999 and increased $513,000 (46%) from $1.1 million for
the nine month period ended September 30, 1998 to $1.6 million
for the nine month period ended September 30, 1999. The
increase represents the cost of five additional banking
facilities in 1999.
3. Purchased services increased $111,000 (24%) from $458,000 for
the three month period ended September 30, 1998 to $569,000
for the three month period ended September 30, 1999 and
increased $418,000 (46%) from $906,000 for the nine month
period ended September 30, 1998 to $1.3 million for the nine
month period ended September 30, 1999. The majority of this
increase is related to data processing services for new
branches and the costs related to year 2000 compliancy
upgrades.
4. Other non-interest expenses increased $247,000 (60%) from
$414,000 for the three month period ended September 30, 1998
to $661,000 for the three month period ended September 30,
1999 and increased $751,000 (65%) from $1.2 million for the
nine month period ended September 30, 1998 to $1.9 million for
the nine month
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period ended September 30, 1999. This increase results from
additional expenses relating to telephone, marketing, and FDIC
insurance, and is attributed to the increase in branch
locations.
Net income increased $448,000 (43%) from $1.0 million for the three month period
ended September 30, 1998 to $1.5 million for the three month period ended
September 30, 1999 and increased $497,000 (17%) from $3.0 million for the nine
month period ended September 30, 1998 to $3.5 million for the nine month period
ended September 30, 1999. The increased provision for loan losses made in the
first quarter of 1999 reduced the net income growth in the nine months year to
date figures.
FINANCIAL CONDITION
Total assets increased $240.9 million (66%) from $367.2 million as of December
31, 1998, to $608.1 million at September 30, 1999. This growth was the result
of:
1. Cash and due from banks increased $13.1 million (94%),
increasing from $13.9 million at December 31, 1998 to $27.0
million at September 30, 1999. This resulted from an increase
in the balance due from the Federal Reserve Bank representing
checks presented for payment but not yet available.
2. Federal funds sold decreased $10.8 million (81%), decreasing
from $13.3 million at December 31, 1998 to $2.5 million at
September 30, 1999. This is the result of moving excess
liquidity from fed funds sold to short term investments in
securities, taking advantage of higher yields available on
investment securities.
3. Investment securities increased by $11.3 million (33%),
increasing from $34.2 million at December 31, 1998 to $45.5
million at September 30, 1999. Excess liquidity at the bank
subsidiary level was used for the purchase of callable US
agency bonds with above market coupon rates, short term to
call maturities, and 5 year or less final maturities.
4. Loans held for sale decreased $2.2 million (43%), decreasing
from $5.2 million at December 31, 1998 to $2.9 million at
September 30, 1999. The Company continued to originate single
family mortgages, however, as a result of staff turnover,
reduced production levels resulted in a lower level of loans
outstanding in the loans held for sale category at September
30, 1999.
5. Net loans receivable increased $223.7 million (78%),
increasing from $287.8 million at December 31, 1998 to $511.5
million at September 30, 1999. This resulted from an increase
in loan demand in the Company's market areas, the continued
growth of several of the Company's newer branches, and the
opening of four new branches and a loan production office by
the Company during the first nine months of 1999.
Total deposits increased $197.0 million (62%) from $319.5 million as of December
31, 1998 to $516.5 million at September 30, 1999. The change was the result of:
1. Demand non-interest bearing deposits increased $11.5 million
(26%), increasing from $44.7 million at December 31, 1998 to
$56.2 million at September 30, 1999. This increase is
attributed to the continued growth of several of the Company's
newer branches, the opening of four new branches and the
addition of a cash management function.
2. Demand interest bearing deposits increased $3.7 million (25%),
increasing from $14.9 million at December 31, 1998 to $18.6
million at September 30, 1999. This resulted primarily from
the addition of several seasoned bankers who focus on cash
management services, and servicing high net worth customers.
3. Time deposits increased $181.8 million (70%), increasing from
$259.9 million at December 31, 1998 to $441.7 million at
September 30, 1999. The Company utilized promotional
campaigns, designed to generate an increase in certificates of
deposit with balances of less than $100,000, to achieve this
growth.
9
<PAGE> 11
Federal funds sold and securities sold under agreements to repurchase increased
$15.2 million (299%) from $5.1 million as of December 31, 1998 to $20.3 million
at September 30, 1999. The increase was attributed to federal funds purchased at
September 30, 1999 to support the uncollected deposits at the Federal Reserve
Bank.
Note payable increased $3.0 million (34%) from $8.8 million as of December 31,
1998 to $11.8 million at September 30, 1999. In February 1999 the balance of the
line was paid with proceeds of the Cumulative Trust Preferred Securities. In
June 1999 the Company began to draw on the line of credit to fund capital needs
of its Colorado bank.
Company obligated mandatorily redeemable preferred securities of subsidiary
trust holding solely Junior Subordinated Debentures increased $23.0 million from
$0.0 as of December 31, 1998 to $23.0 million at September 30, 1999. On February
16, 1999, the Company and its wholly owned subsidiary, FW Capital 1 (the
"Trust"), completed the sale of $23.0 million of 9.375% Cumulative Trust
Preferred Securities of the Trust. Net proceeds were approximately $21.9 million
after payment of sales commissions and other offering costs, and were invested
in Junior Subordinated Debentures issued by the Company to the Trust in
connection with the public offering. Interest on the Junior Subordinated
Debentures is paid by the Company to the Trust. This interest is the sole
revenue of the trust and the source for distributions by the Trust to the
holders of the Trust Preferred Securities.
Allowance for loan losses increased $2.2 million (100%) from $2.2 million as of
December 31, 1998 to $4.4 million at September 30, 1999. The following table
presents, for the periods indicated, an analysis of the allowance for loan loses
and related ratios:
<TABLE>
<CAPTION>
Nine Months Ended
September 30, 1999 September 30, 1998
------------------ ------------------
(in thousands)
<S> <C> <C>
Balance beginning of period .......................... $ 2,187 $ 1,321
Provision for loan losses ............................ 2,174 180
Net charge offs ...................................... (3) (91)
------------ ------------
Balance end of period ................................ $ 4,364 $ 1,592
============ ============
Ratios:
Allowance for loan losses to total loans ............. 0.85% 0.69%
Allowance for loan losses to non-performing loans .... 348% 230%
</TABLE>
The allowance for loan losses represents management's recognition of the risks
of extending credit and its evaluation of the quality of the loan portfolio. The
allowance for loan losses is maintained at a level that is considered adequate
to provide for anticipated loan losses, based on various factors affecting the
loan portfolio, including a review of problem loans, business conditions,
historical loss experience, evaluation of the underlying collateral and holding
and disposal costs. The allowance is increased by additional charges to
operating income and reduced by loans charged off, net of recoveries.
The following table presents information and ratios of the Company's
non-performing assets as of the dates indicated:
<TABLE>
<CAPTION>
September 30,
---------------------------------
1999 1998
------------ ------------
(in thousands)
<S> <C> <C>
Loans 90 days or more delinquent and still accruing
interest ......................................... $ 550 $ 414
Non-accrual loans .................................... 705 279
Restructured loans ................................... -- --
------------ ------------
Total non-performing loans ...................... 1,255 693
Real estate acquired by foreclosure .................. 91 778
------------ ------------
Total non-performing assets ..................... $ 1,346 $ 1,471
============ ============
Ratios:
Non-performing assets to total assets ................ 0.22% 0.44%
Non-performing loans to total loans .................. 0.24% 0.28%
</TABLE>
10
<PAGE> 12
LIQUIDITY
FirsTier continuously forecasts and manages its liquidity in order to satisfy
cash flow requirements of depositors and borrowers and to allow FirsTier to meet
its own cash flow needs. Management has identified two major categories of
liquidity:
1) Ongoing business cash flows:
The Company's major source of cash flows is provided by financing
activities, $236.9 million for the nine-month period ended September
30, 1999 and $104.2 million for the nine-month period ended September
30, 1998. Cash provided consisted primarily of deposit growth and
proceeds from the issuance of trust preferred securities for the
nine-month period ended September 30, 1999, and deposit growth and
advances from the Federal Home Loan Bank for the nine-month period
ended September 30, 1998.
The major use of cash flows for the Company is in investing activities
$230.0 million for the nine-month period ended September 30, 1999 and
$102.9 million for the nine-month period ended September 30, 1998. For
the nine-month period ended September 30, 1999, the major components of
this use were a $225.9 million increase in net loans, and a net
increase of $32.1 million in investment securities. For the nine-month
period ended September 30, 1998, the major components of this use were
a $83.3 million increase in net loans, and a net increase of $15.8
million in investment securities.
2) Backup sources of liquidity
Management believes it has developed sufficient backup sources of
liquidity to meet the Company's needs for the foreseeable future. These
internal and external sources include, but are not limited to:
1. The ability to raise deposits through branch promotional
campaigns
2. Maturity of overnight federal funds sold ($3 million available
as of September 30, 1999)
3. Sale of available-for-sale securities ($39 million available
as of September 30, 1999)
4. Available borrowing lines ($28 million available as of
September 30, 1999)
5. Increased borrowing lines available at the Federal Home Loan
Bank with the purchase of additional Federal Home Loan Bank
stock ($38 million available as of September 30, 1999)
DATA PROCESSING SYSTEMS AND YEAR 2000 COMPLIANCE
As a result of computer routines employed by early programers, many existing
software programs and operating systems may be unable to distinguish the year
2000 from the year 1900. Management presently believes that due to modifications
implemented in the first half of 1999 to existing software and conversion to new
software, the year 2000 issue will not pose significant operational problems for
the Company. Substantially all of the Company's data processing services are
provided under a contract with First Commerce Technologies, an affiliate of the
National Bank of Commerce, Lincoln, Nebraska. First Commerce Technologies has
been engaged by the Company to ensure that its systems are fully year 2000
compliant. Substantially all of the year 2000 services of First Commerce
Technologies have been completed, and it provides the Company with status
reports on a monthly basis. Management believes that, to date, the Company's
software programs and operating systems are completely converted, tested and
year 2000 compliant. Implementation of the Company's plan to test in-house and
outsourced software has been completed. Applications considered to be mission
critical were tested during the first quarter of 1999, with successful results.
Compliance audits performed to date on the Company's subsidiaries have been
positive and no specific items of improvement were noted.
In conjunction with the implementation of the year 2000 plan, the Company has
also made substantial investments in computer hardware and software to keep its
banks competitive in the marketplace. With the majority of the expenditures
completed, management estimates that the Company has spent a total of $1.0
million on technology upgrades, with approximately $160,000 being spent directly
on year 2000 compliance. The plan implementation team is responsible for
progress and provides a status report to the board of directors on a monthly
basis.
In the event that a year 2000 related interruption should occur over which the
Company has no control the Company has developed a two prong contingency plan
which would be implemented based on the expected duration and nature of the
interruption. In the event of a loss of computer communications, loss of
utilities or a expected short duration interruption, a manual back up process
has been developed and was completely tested in the third quarter of 1999. In
the event that
11
<PAGE> 13
the Company's primary service provider fails and is unsuccessful in implementing
its backup contingency plan, the Company has identified an alternate vendor.
Management believes that the alternate vendor has the ability to provide the
service to meet the Company's needs because this vendor has software that is
year 2000 compliant which is installed with other parties and would provide a
warranty to the Company as to year 2000 compliance. In the event the Company
were to use the alternate vendor, management believes that the monthly
processing costs could increase marginally, and a one-time conversion cost in
the range of $75,000 to $125,000 would probably be incurred.
Pursuant to guidelines of the banking industry regulators, the Company's bank
subsidiaries have sent direct mail to their customers regarding the year 2000
issue and the need for readiness. However, response to these inquiries has not
been significant. Management intends to continue to solicit customer response on
this matter. Since September 1998, commercial loan customers have been required
to sign year 2000 compliance statements as a part of the loan documentation
process. Failure of the Company's customers to prepare for year 2000
compatibility could have a significant adverse effect on customers' operations
and profitability, thus inhibiting their ability to repay loans and adversely
affecting the Company's operations. The Company does not have sufficient
information accumulated from customers to enable management to assess the degree
to which customers' operations are susceptible to potential problems relating to
the year 2000 issue or, further, to quantify the potential lost revenue to the
Company in this case.
In July 1999, the Year 2000 Act was signed into law. The Year 2000 Act
establishes uniform, national legal standards and liability limitations
governing lawsuits arising from actual or potential year 2000 failures,
including a duty of potential plaintiffs to mitigate damages both before and
after a year 2000 failure, strict enforcement of any contractual terms and
limitations on the ability of plaintiffs to seek punitive damages. The Year 2000
Act will most likely be interpreted by the courts. The Company is unable to
predict the extent to which it may collect or be required to pay in the event of
a lawsuit.
12
<PAGE> 14
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
An action by unanimous written consent of the
Company's shareholders was made as of September 14,
1999. The following actions were taken:
o The Company reincorporated in the state of
Colorado.
o The corporate name was changed to FirsTier
Bancorp Inc.
o A 52.48 for one stock split was made.
o The 1999 FirsTier Corporation Stock
Incentive Plan was adopted.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
(i) Exhibits filed with this Form 10-QSB:
Exhibit No. Description
2 Articles of merger merging First Western Corp. into
FirsTier Bancorp, Inc.
3i Articles of Incorporation of FirsTier Bancorp, Inc.
3ii Bylaws of of FirsTier Bancorp, Inc.
10.14 1999 FirsTier Corporation Stock Incentive Plan
adopted as of September 15, 1999.
10.15 Agreement concerning the sale of FIRSTIER mark, dated
September 17, 1999, by and between U.S. Bancorp, U.S.
Bank National Association and Firstate Bank of
Colorado.
27 (a) Financial Data Schedule.
27 (b) Restated Financial Data Schedule.
(ii) Exhibits previously filed and incorporated herein by reference:
Exhibit No. Description
4.1 Form of Subordinated Indenture dated February 15,
1999 between the Registrant and Wilmington Trust
Company, as Indenture Trustee (1).
4.2 Form of Junior Subordinated Debenture (included as an
exhibit to Exhibit 4.1).
4.5 Form of Amended and Restated Trust Agreement of FW
Capital I (1).
4.7 Form of Preferred Securities Guarantee Agreement (1).
99 Risk Factors incorporated by reference from First
Western's Rule 424(b) Prospectus filed on February
10, 1999(2).
-------
(1) Filed with the Registration Statement on Form SB-2, SEC File
No. 333-67107, on November 13, 1998.
(2) Filed with the 10-QSB on August 12, 1999.
(b) Reports on Form 8-K -- None
13
<PAGE> 15
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
FIRSTIER BANCORP, INC.
Date: October 29, 1999 By: /s/ Timothy D. Wiens
---------------- ----------------
President
Date: October 29, 1999 By: /s/ Ronald B. James
---------------- ---------------
Ronald B. James, Chief Financial Officer
14
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
2 Articles of merger merging First Western Corp. into
FirsTier Bancorp, Inc.
3i Articles of Incorporation of FirsTier Bancorp, Inc.
3ii Bylaws of of FirsTier Bancorp, Inc.
10.14 1999 FirsTier Corporation Stock Incentive Plan
adopted as of September 15, 1999.
10.15 Agreement concerning the sale of FIRSTIER mark, dated
September 17, 1999, by and between U.S. Bancorp, U.S.
Bank National Association and Firstate Bank of
Colorado.
27 (a) Financial Data Schedule.
27 (b) Restated Financial Data Schedule.
4.1 Form of Subordinated Indenture dated February 15,
1999 between the Registrant and Wilmington Trust
Company, as Indenture Trustee (1).
4.2 Form of Junior Subordinated Debenture (included as an
exhibit to Exhibit 4.1).
4.5 Form of Amended and Restated Trust Agreement of FW
Capital I (1).
4.7 Form of Preferred Securities Guarantee Agreement (1).
99 Risk Factors incorporated by reference from First
Western's Rule 424(b) Prospectus filed on February
10, 1999(2).
</TABLE>
-------
(1) Filed with the Registration Statement on Form SB-2, SEC File
No. 333-67107, on November 13, 1998.
(2) Filed with the 10-QSB on August 12, 1999.
<PAGE> 1
EXHIBIT 2
ARTICLES OF MERGER
MERGING
FIRST WESTERN CORP.
INTO
FIRSTIER BANCORP, INC.
THESE ARTICLES OF MERGER, dated this 14th day of September,
1999, pursuant to Section 7 -111-107 of the Colorado Business
Corporation Act (hereinafter referred to as the "Colorado
Act") and Section 21-20,134 of the Nebraska Business
Corporation Act (the "Nebraska Act"), are entered into by and
between FirsTier Bancorp, Inc. , a Colorado corporation, and
First Western Corp. , a Nebraska Corporation, which are
referred to collectively as the Constituent Corporations.
These Articles of Merger shall also serve as the plan of
merger referred to in Section 7 -111-104(2) of the Colorado
Act and Section 21-20, 132 of the Nebraska Act.
FIRST: FirsTier Bancorp, Inc. (hereinafter sometimes referred
to as the "Surviving Corporation") and First Western Corp.
(hereinafter sometimes referred to as "FWC") agree that FWC
shall be merged into the Surviving Corporation. The terms and
Conditions of the merger and the mode of carrying the same
into effect are as herein set forth in these Articles of
Merger.
SECOND: Firstier Bancorp, Inc, shall be the surviving
corporation.
THIRD: The principal office of the Surviving Corporation is
11210 Huron Street, Northglenn, Colorado 80234.
FOURTH: The principal office of FWC in Nebraska is 115 South
Walnut, Kimball, Nebraska 69145.
FIFTH: The board of directors of the Surviving Corporation, on
September 14th, 1999, by unanimous written consent of the
Board of Directors, duly adopted a resolution which declared
that a merger upon the terms and conditions set forth in these
Articles of Merger was advised, authorized and approved.
The board of directors of FWC, on September 14th, 1999, by
unanimous written consent of the Board of Directors, duly
adopted a resolution which declared that a merger upon the
terms and conditions set forth in these Articles of Merger was
advised, authorized and approved.
SIXTH: These Articles of Merger were duly submitted to and
approved by the affirmative vote of one hundred percent (100%)
of all of the votes entitled to be cast thereon pursuant to an
action by unanimous written consent of the shareholders of
Surviving Corporation, as permitted by the Colorado Act.
<PAGE> 2
These Articles and Plan of Merger were duly submitted to and
approved by the affirmative vote of one hundred percent (100%)
of all of the votes entitled to be cast thereon pursuant to an
action by unanimous written consent of the shareholders of FWC
as permitted by its Articles of Incorporation and Nebraska
Act.
SEVENTH: No amendment is made to the Articles of Incorporation
of the Surviving Corporation.
EIGHTH: The authorized and outstanding capital stock of FWC
and the Surviving Corporation are as follows:
A. FWC is authorized to issue 50,000,000 shares of
common stock, $.001 par value, and 20,000,000 shares
of preferred stock, $.001 par value. There are
outstanding 144,440 shares of said common stock, said
common stock being entitled to vote, No shares of
preferred stock are outstanding.
B. The Surviving Corporation is authorized to issue
50,000,000 shares of common stock and 20,000,000
shares of preferred stock. There are outstanding 100
shares of common stock, said common stock being
entitled to vote, and no shares of said preferred
stock are are outstanding.
NINTH: The manner and basis of converting or exchanging the
issued and outstanding stock of each of the Constituent
Corporations into different stock or other consideration and
the treatment of any issued stock of the Constituent
Corporations not to be so converted or exchanged on the
Effective Date (as defined below) of the merger contemplated
hereby shall be as follows:
A. Each outstanding share of the common stock of FWC,
shall thereupon, and without the surrender of stock
certificates or any other action, be converted into
one fully paid and nonassessable outstanding share of
the common stock of the Surviving Corporation.
Certificates representing outstanding shares of the
common stock of FWC shall thenceforth be deemed to
represent the same number of shares of the common
stock of the Surviving Corporation and the holders
thereof shall have all of the same rights which they
would have had if such certificates had been issued
by the Surviving Corporation;
B. The 100 shares of common stock of the Surviving
Corporation owned by FWC shall be canceled and
retired, all rights in respect thereof shall cease
and the capital of the Surviving Corporation shall be
reduced by the FWC capital applicable to such shares;
and
C. All outstanding options, warrants and other
agreements to purchase shares of the common stock of
FWC shall become, respectively, options, warrants and
agreements to purchase, at the same prices and on the
same terms and conditions, the same number of shares
of the common stock of the Surviving Corporation.
<PAGE> 3
TENTH: Upon the Effective Date:
A. the assets and liabilities of the FWC shall be taken
up on, the books of the Surviving Corporation at the
amount at which they shall at that time be carried on
the books of FWC, and
B. all of the rights, privileges, immunities, powers,
purposes, and franchises of the FWC, and all
property, real, personal and mixed, and all debts due
to FWC on whichever account shall be vested in the
Surviving Corporation, and all property rights,
privileges, immunities, powers, purposes and
franchises, and all and every other interest shall be
thereafter the property of the Surviving Corporation
as they were of FWC, and all debts, liabilities,
obligations and duties of FWC shall thenceforth
attach to the Surviving Corporation and may be
enforced against it to the same extent as if said
debts, liabilities, obligations and duties had been
incurred or contracted by it.
The merger provided for by these Articles of merger
shall become effective upon filling of these Articles with the
Colorado Secretary of State and the Nebraska Secretary of
State (the "Effective Date"), and the separate existence of
FWC, except insofar as continued by statute, shall cease on
the Effective Date.
IN WITNESS WHEREOF, each of the Constituent
Corporations, pursuant to the approval and authority duly
given by resolutions or unanimous written consents adopted by
their respective Boards of Directors, have caused these
Articles and Plan of Merger to be signed in their respective
corporation names by their respective officers and witnessed
or attested by their respective Secretaries as of the 14th day
of September, 1999, each of whom affirms, under penalties of
perjury, that the facts stated herein are true.
<TABLE>
<CAPTION>
FIRST WESTERN CORP.
ATTEST
<S> <C>
/s/ Michael J. Nelson By: /s/ Timothy D. Wiens
--------------------- -------------------------
Michael J. Nelson, Secretary Timothy D. Wiens, Vice Chairman
FIRSTIER BANCORP, INC.
ATTEST
/s/ Ronald B. James By: /s/ Timothy D. Wiens
------------------- -------------------------
Ronald B. James, Secretary Timothy D. Wiens, President
</TABLE>
<PAGE> 1
EXHIBIT 3i
ARTICLES OF INCORPORATION
OF
FIRSTIER BANCORP, INC.
The undersigned natural person of the age of at least eighteen (18)
years, acting as incorporator, hereby establishes a corporation ("Corporation")
pursuant to the provisions of the Colorado Business Corporation Act, and hereby
adopts the following Articles of Incorporation for the Corporation:
ARTICLE I
Name
The name of the Corporation shall be FirsTier Bancorp, Inc.
ARTICLE II
Duration
The period of duration of the Corporation shall be perpetual.
ARTICLE III
Purpose
The purpose for which the Corporation is organized is the transaction
of all lawful business for which corporations may be incorporated pursuant to
Colorado law.
ARTICLE IV
Shares
The total number of shares of all classes which the Corporation has
authority to issue is 70,000,000 of which 50,000,000 shares shall be Common
Stock, and 20,000,000 shares shall be Preferred Stock.
The designations and the preferences, conversion and other rights,
voting powers, restrictions, limitations as to distributions, qualifications,
and terms and conditions of redemption of the shares of each class of stock are
as follows:
COMMON STOCK
Subject to all of the rights of the Preferred Stock as expressly
provided herein, by law or by the Board of Directors pursuant to this Article,
the Common Stock of the Corporation shall possess all such rights and privileges
as are afforded to capital stock by applicable law in the absence of any express
grant of rights or privileges in these Articles of Incorporation, including, but
not limited to, the following rights and privileges:
(a) distributions may be declared and paid or set apart for
payment upon the Common Stock out of any assets or funds of the
Corporation legally available for the payment of distributions;
(b) the holders of Common Stock shall have the right to vote for
the election of directors and on all other matters requiring
stockholder action, each share being entitled to one vote; and
(c) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the Corporation
shall be distributed pro rata to the holders of the Common Stock
in accordance with their respective rights and interests.
<PAGE> 2
PREFERRED STOCK
The Preferred Stock may be issued from time to time by the Board of
Directors as shares of one or more series. The description of shares of each
series of Preferred Stock, including any preferences, conversion and other
rights, voting powers, restrictions, limitations as to distributions,
qualifications, and terms and conditions of redemption shall be as set forth in
resolutions adopted by the Board of Directors and in Articles of Amendment to
State Terms of Series Shares filed as required by law from time to time prior to
the issuance of any shares of such series.
The Board of Directors is expressly authorized, prior to issuance, by
adopting resolutions providing for the issuance of, or providing for a change in
the number of, shares of any particular series of Preferred Stock and, if and to
the extent from time to time required by law, by filing Articles of Amendment to
State Terms of Series Shares to set or change the number of shares to be
included in each series of Preferred Stock and to set or change in any one or
more respects the designations, preferences, conversion or other rights, voting
powers, restrictions, limitations as to distributions, qualifications, or terms
and conditions of redemption relating to the shares of each such series.
Notwithstanding the foregoing, the Board of Directors shall not be authorized to
change the right of the Common Stock of the Corporation to vote one vote per
share on all matters submitted for shareholder action. The authority of the
Board of Directors with respect to each series of Preferred Stock shall include,
but not be limited to, setting or changing the following:
(a) the distinctive serial designation of such series and the
number of shares constituting such series (provided that the aggregate
number of shares constituting all series of Preferred Stock shall not
exceed 20,000,000);
(b) the annual distribution rate on shares of such series,
whether distributions shall be cumulative and, if so, from which date
or dates;
(c) whether the shares of such series shall be redeemable and,
if so, the terms and conditions of such redemption, including the date
or dates upon and after which such shares shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption dates;
(d) the obligation, if any, of the Corporation to redeem or
repurchase shares of such series pursuant to a sinking fund;
(e) whether shares of such series shall be convertible into,
or exchangeable for, shares of stock of any other class or classes and,
if so, the terms and conditions of such conversion or exchange,
including the price or prices or the rate or rates of conversion or
exchange and the terms of adjustment, if any;
(f) whether the shares of such series shall have voting
rights, in addition to the voting rights provided by law, and, if so,
the terms of such voting rights;
(g) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(h) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such
series which may be authorized or permitted under the Colorado Business
Corporation Act.
The shares of Preferred Stock of any one series shall be identical with
each other in all respects except as to the dates from and after which dividends
thereon shall cumulate, if cumulative.
<PAGE> 3
ARTICLE V
Cumulative Voting
Cumulative voting shall not be allowed in elections of directors or for
any other purpose.
ARTICLE VI
Preemptive Rights
Holders of shares of the Corporation shall have no preemptive rights to
purchase additional shares of the Corporation's stock.
ARTICLE VII
Registered Office and Agent
The street address of the Corporation's registered office in Colorado
is:
1625 Broadway, Suite 1600
Denver, Colorado 80202
The name of the Corporation's registered agent at the address of the
aforesaid registered office is:
Reid A. Godbolt
ARTICLE VIII
Principal Office
The address of the Corporation's principal office is:
11210 Huron Street
Northglenn, Colorado 80234
ARTICLE IX
Directors
The affairs of the Corporation shall be governed by a Board of
Directors consisting of not less than one director, with the number of directors
specified in or fixed in accordance with the Bylaws of the Corporation, as may
be amended from time to time, except as to the number constituting the initial
board which number shall be three.
The Board of Directors shall be divided into three (3) classes, each
class to be as nearly equal in number as possible. The terms of office of
directors of the first class are to expire at the first annual meeting of
shareholders after their election, those of the second class is to expire at the
second annual meeting after their election, and those of the third class is to
expire at the third annual meeting after their election. Thereafter, each
director shall serve for a term ending on the date of the third annual meeting
of shareholders following the annual meeting at which such director was elected.
This divided Board of Directors provision shall not be altered or repealed
without the affirmative vote of the holders of at least two-thirds of the shares
entitled to vote in the election of directors. The directors may not amend or
repeal this divided Board of Directors provision.
The initial Board of Directors, divided by class, shall be:
Class I Michael J. Nelson
Class II Timothy D. Wiens
<PAGE> 4
Class III Joel H. Wiens
ARTICLE X
Elimination of Personal Liability of a Director
To the fullest extent permitted by Colorado law, as the same exists or
may hereafter be amended, a director of the Corporation shall not be liable to
the Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director.
ARTICLE XI
Indemnification of Directors
The Corporation shall indemnify and advance expenses to directors and
officers of the Corporation to the fullest extent permitted by Colorado law, as
the same exists or may hereafter be amended.
ARTICLE XII
Voting Requirements
The affirmative vote of the holders of not less than two-thirds of the
shares entitled to vote thereupon shall be required for approval or
authorization of any (i) merger or consolidation of the Corporation with or into
any other corporation; or (ii) sale, lease, exchange or other disposition of all
or substantially all of the assets of the Corporation to any other corporation,
person or entity; or (iii) the dissolution of the Corporation.
ARTICLE XIII
Amendments
These Articles of Incorporation of the Corporation can only be amended
or repealed by the affirmative vote of the holders of at least two-thirds of the
shares entitled to vote thereon.
<PAGE> 5
ARTICLE XV
Incorporator
The name and address of the incorporator of the Corporation is as
follows:
Name Address
---- -------
Reid A. Godbolt 1625 Broadway, Suite 1600
Denver, Colorado 80202
IN WITNESS WHEREOF, the undersigned incorporator has hereunto affixed
his signature on the 9th day of September, 1999.
/s/ Reid A. Godbolt
-----------------------------
Reid A. Godbolt, Incorporator
CONSENT OF REGISTERED AGENT
I hereby consent to my appointment as initial Registered Agent of the
Corporation in the foregoing Articles of Incorporation.
/s/ Reid A. Godbolt
-----------------------------
<PAGE> 1
EXHIBIT 3ii
BYLAWS
OF
FIRSTIER BANCORP, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the corporation
shall initially be located at 11210 Huron Street, Northglenn, Colorado 80234.
The corporation may change the location of such principal office and may have
such other offices, either within or outside Colorado, as the board of directors
may designate, or as the business of the corporation may require from time to
time.
SECTION 2. REGISTERED OFFICE AND REGISTERED AGENT. The address of the
initial registered office of the corporation is 1625 Broadway, Suite 1600,
Denver, Colorado 80202, and the name of the initial registered agent at this
address is Reid A. Godbolt. The registered office and the registered agent may
be changed by the board of directors at any time.
ARTICLE II
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall
be held on the third Tuesday in May, beginning in the year 2000, at 10:00 a.m.
or at any other time on any other day that shall be fixed by the board of
directors, for the purpose of electing directors and for the transaction of any
other business that may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday in Colorado, the meeting shall be held on the
next succeeding business day. If the election of directors shall not be held on
the day designated in this Section 1 for an annual meeting of the shareholders,
or at any adjournment of the meeting, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as may be convenient.
SECTION 2. SPECIAL MEETING. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the
chairman of the board, the president, the board of directors, or by the holders
of not less than 10% of all outstanding shares of the corporation entitled to
vote at the meeting.
SECTION 3. PLACE OF MEETING. The board of directors may designate any
place, either within or without Colorado, as the place of meeting for any annual
or special meeting called by the board of directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or without Colorado, as the place for the holding of the meeting.
If no designation is made, or if a special meeting is otherwise called, the
place of meeting shall be the principal office of the Company in the State of
Colorado.
SECTION 4. NOTICE OF MEETINGS. Written notice stating the place, day
and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall, unless otherwise prescribed by
statute, be delivered not less than 10 nor more than 60 days before the date of
the meeting, either personally or by mail, by or at the direction of the
chairman of the board, the president, the secretary, or the officer or other
person authorized to give notice of the meeting, to each shareholder of record
entitled to vote at the meeting; except that if the number of authorized shares
are to be increased, at least 30 days' notice shall be given.
Notice of a special meeting shall include a description of the purpose
or purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to: (i) an amendment to the articles of
incorporation of the corporation; (ii) a merger or share exchange in which the
corporation is a party and,
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with respect to a share exchange, in which the corporation's shares will be
required; (iii) a sale, lease, exchange or other disposition, other than in the
usual and regular course of business, of all or substantially all of the
property of the corporation or of another entity which this corporation
controls, in each case with or without the goodwill; (iv) a dissolution of the
corporation; (v) restatement of the articles of incorporation; or (vi) any other
purpose for which a statement of purpose is required by the Colorado Business
Corporation Act. Notice shall be given personally or by mail, private carrier,
telegraph, teletype, electronically transmitted facsimile or other form of wire
or wireless communication by or at the direction of the chairman of the board,
the president, the secretary, or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting. If mailed and if in
a comprehensible form, such notice shall be deemed to be given and effective
when deposited in the United States mail, properly addressed to the shareholder
at his address as it appears in the corporation's current record of
shareholders, with first class postage prepaid. If notice is given other than by
mail, and provided that such notice is in a comprehensible form, the notice is
given and effective on the date actually received by the shareholder.
If requested by the person or persons lawfully calling such meeting,
the secretary shall give notice thereof at corporate expense. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such time
as another address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
When a meeting is adjourned to another date, time or place, notice need
not be given of the new date, time or place if the new date, time or place of
such meeting is announced before adjournment at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact any
business which may have been transacted at the original meeting. If the
adjournment is for more than 120 days, or if a new record date is fixed for the
adjournment meeting, a new notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting as of the new record
date.
A shareholder may waive notice of a meeting before or after the time
and date of the meeting by a writing signed by such shareholder. Such waiver
shall be delivered to the corporation for filing with the corporate records, but
this delivery and filing shall not be conditions to the effectiveness of the
waiver. Further, by attending a meeting either in person or by proxy, a
shareholder waives objection to lack of notice or defective notice of the
meeting unless the shareholder objects at the beginning of the meeting to the
holding of the meeting or the transaction of business at the meeting because of
lack of notice or defective notice. By attending the meeting, the shareholder
also waives any objection to consideration at the meeting of a particular matter
not within the purpose or purposes described in the meeting notice unless the
shareholder objects to considering the matter when it is presented.
SECTION 5. FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment of a meeting, or shareholders entitled to receive payment of any
distribution, or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may fix in advance a
date as the record date for any such determination of shareholders, such date in
any case to be not more than 70 days and, in case of a meeting of shareholders,
not less than 10 days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If no record date
is fixed by the directors, the record date shall be the day before the notice of
the meeting is given to shareholders, or the date on which the resolution of the
board of directors providing for a distribution is adopted, as the case may be.
When a determination of shareholders entitled to vote at any meeting of
shareholders is made as provided in this Section 5, such determination shall
apply to any adjournment thereof unless the board of directors fixes a new
record date, which it must do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting. Unless otherwise
specified when the record date is fixed, the time of day for such determination
shall be as of the corporation's close of business on the record date.
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Notwithstanding the above, the record date for determining the
shareholders entitled to take action without a meeting or entitled to be given
notice of action so taken shall be the date a writing upon which the action is
taken is first received by the corporation. The record date for determining
shareholders entitled to demand a special meeting shall be the date of the
earliest of any of the demands pursuant to which the meeting is called.
SECTION 6. SHAREHOLDERS' LIST. The officer or agent having charge of
the stock transfer books for shares of the corporation shall make, before each
meeting of shareholders, a complete record of the shareholders entitled to vote
at the meeting or any adjournment of the meeting, arranged by voting groups and
within each voting group by class or series, in alphabetical order within each
class or series, with the address of, and the number of shares of each class or
series held by each shareholder. The shareholders' list shall be available for
inspection by any shareholder, beginning the earlier of 10 days before the
meeting for which the list was prepared or two business days after the notice of
the meeting is given and continuing through the meeting, and any adjournment of
the meeting, at the principal office of the corporation or at a place identified
in the notice of the meeting in the city where the meeting will be held. The
shareholders' list shall be subject to inspection on the written demand of any
shareholder and, subject to restrictions of Colorado law, to copy the list
during regular business hours and during the period it is available for
inspection. The original stock transfer books shall be prima facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders.
SECTION 7. QUORUM AND MANNER OF ACTING. Except as provided by law, by
the Articles of Incorporation or these Bylaws, one-third of the votes entitled
to be cast on a matter by a voting group represented in person or by proxy,
shall constitute a quorum of that voting group for action on the matter. In the
absence of a quorum at a meeting, a majority of the votes so represented may
adjourn the meeting from time to time without further notice, for a period not
to exceed 120 days for any one adjournment. If a quorum is present at such
adjourned meeting, any business may be transacted which might have been
transacted at the meeting as originally noticed. The shareholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal during such meeting of enough shareholders to
leave less than a quorum.
If a quorum exists, action on a matter other than the election of
directors by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group opposing
the action, unless the vote of a greater number or voting by classes is required
by law or the articles of incorporation.
SECTION 8. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy by signing an appointment form or similar writing, either
personally or by his duly authorized attorney-in-fact. A shareholder may also
appoint a proxy by transmitting or authorizing the transmission of a facsimile,
telegram, teletype, or other electronic transmission providing a written
agreement of the appointment of the proxy, a proxy solicitor, proxy support
service organization, or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the corporation. The transmitted
appointment shall set forth or be transmitted with written evidence from which
it can be determined that the shareholder transmitted or authorized the
transmission of the appointment. The proxy appointment form or similar writing
shall be filed with the secretary of the corporation before or at the time of
the meeting. The appointment of a proxy is effective when received by the
corporation and is valid for 11 months unless a different period is expressly
provided in the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile,
of an appointment of a proxy may be substituted for or used in lieu of the
original appointment for any purpose for which the original appointment could be
used.
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Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless: (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his authority under the
appointment; or (ii) other notice of the revocation of the appointment is
received by the secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment. Other notice of
revocation may, in the discretion of the corporation, be deemed to include the
appearance at a shareholders' meeting of the shareholder who granted the proxy
and his voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his authority
under the appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
Subject to Section 10 of this Article II and any express limitation on
the proxy's authority appearing on the appointment form, the corporation is
entitled to accept the proxy's vote or other action as that of the shareholder
making the appointment.
SECTION 9. VOTING OF SHARES. Each outstanding share, regardless of
class, shall be entitled to one vote, except in the election of directors, and
each fractional share shall be entitled to a corresponding fractional vote on
each matter submitted to a vote at a meeting of shareholders, except to the
extent that the voting rights of the shares of any class or classes are limited
or denied by the Articles of Incorporation as permitted by the Colorado Business
Corporation Act. Cumulative voting shall not be permitted in the election of
directors or for any other purpose.
At each election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a
finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has been deposited with a bank, trust company or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
SECTION 10. VOTING OF SHARES BY CERTAIN SHAREHOLDERS. If the name
signed on a vote, consent, waiver, proxy appointment, or proxy appointment
revocation corresponds to the name of a shareholder, the corporation, if acting
in good faith, is entitled to accept the vote, consent, waiver, proxy
appointment or proxy appointment revocation and give it effect as the act of the
shareholder. If the name signed on a vote, consent, waiver, proxy appointment or
proxy appointment revocation does not correspond to the name of a shareholder,
the corporation, if acting in good faith, is nevertheless entitled
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to accept the vote, consent, waiver, proxy appointment or proxy appointment
revocation and to give it effect as the act of the shareholder if: (i) the
shareholder is an entity and the name signed purports to be that of an officer
or agent of the entity; (ii) the name signed purports to be that of an
administrator, executor, guardian or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote, consent, waiver, proxy
appointment or proxy appointment revocation; (iii) the name signed purports to
be that of a receiver or trustee in bankruptcy of the shareholder and, if the
corporation requests, evidence of this status acceptable to the corporation has
been presented with respect to the vote, consent, waiver, proxy appointment or
proxy appointment revocation; (iv) the name signed purports to be that of a
pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the signatory's
authority to sign for the shareholder has been presented with respect to the
vote, consent, waiver, proxy appointment or proxy appointment revocation; (v)
two or more persons are the shareholder as co-tenants or fiduciaries and the
name signed purports to be the name of at least one of the co-tenants or
fiduciaries, and the person signing appears to be acting on behalf of all the
co-tenants or fiduciaries; or (vi) the acceptance of the vote, consent, waiver,
proxy appointment or proxy appointment revocation is otherwise proper under
rules established by the corporation that are not inconsistent with this Section
10.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the secretary or other officer or
agent authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
Neither the corporation nor its officers nor any agent who accepts or
rejects a vote, consent waiver, proxy appointment or proxy appointment
revocation in good faith and in accordance with the standards of this Section 10
is liable in damages for the consequences of the acceptance or rejection.
SECTION 11. MEETINGS BY TELECOMMUNICATION. Any or all of the
shareholders may participate in an annual or special shareholders' meeting by,
or the meeting may be conducted through the use of, any means of communication
by which all persons participating in the meeting may hear each other during the
meeting. A shareholder participating in a meeting by this means is deemed to be
present in person at the meeting.
SECTION 12. RECOGNITION PROCEDURE FOR BENEFICIAL OWNERS. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation that all or a portion of
the shares registered in the name of such shareholder are held for the account
of a specified person or persons. The resolution may set forth: (i) the types of
nominees to which it applies; (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting; (iii) the form of certification and the information to be
contained therein; (iv) if the certification is with respect to a record date,
the time within which the certification must be received by the corporation; (v)
the period for which the nominee's use of the procedure is effective; and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the persons specified in
the certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the corporation shall
be managed under the direction of, its board of directors, except as otherwise
provided in the Colorado Business Corporation Act.
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SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors
of the corporation shall be fixed from time to time by a resolution of the board
of directors or by a resolution adopted by at least a majority of the
shareholders entitled to vote, but in no instance shall there be less than one
director. No decrease in the number of directors shall have the effect of
shortening the term of any incumbent director. A director shall be a natural
person who is eighteen years of age or older. A director need not be a resident
of Colorado or a shareholder of the corporation.
The board of directors shall be divided into three classes, each class
to be as nearly equal in number as possible. The terms of office of directors of
the first class are to expire at the first annual meeting of shareholders after
their election, those of the second class is to expire at the second annual
meeting after their election, and those of the third class is to expire at the
third annual meeting after their election. Thereafter, each director shall serve
for a term ending on the date of the third annual meeting of shareholders
following the annual meeting at which such director was elected.
Each director shall hold office until his successor shall have been
elected and qualified. Any director may be removed by the holders of not less
than two-thirds of the voting group that elected the director, with or without
cause, at a meeting called for that purpose. The notice of the meeting shall
state that the purpose or one of the purposes of the meeting is removal of the
director.
There shall be a chairman of the board, who has been elected from among
the directors. He shall preside at all meetings of the shareholders and of the
board of directors. He shall have such other powers and duties as may be
prescribed by the board of directors.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without notice immediately after, and at the same place
as, the annual meeting of shareholders. The board of directors may provide, by
resolution, the time and place, either within or without Colorado, for the
holding of additional regular meetings without other notice.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the chairman of the board, the president
or any two directors. The person or persons authorized to call special meetings
of the board of directors may fix any place, either within or without Colorado,
as the place for holding any special meeting of the board of directors called by
them.
SECTION 5. NOTICE OF MEETING. Notice of the date, time and place of any
special meeting shall be given to each director at least two days prior to the
meeting by written notice either personally delivered or mailed to each director
at his business address, or by notice transmitted by private courier, telegraph,
telex, electronically transmitted facsimile or other form of wire or wireless
communication. If mailed, such notice shall be deemed to be given and to be
effective on the earlier of: (i) five days after such notice is deposited in the
United States mail, properly addressed, with first class postage prepaid; or
(ii) the date shown on the return receipt, if mailed by registered or certified
mail return receipt requested, provided that the receipt is signed by or on
behalf of the director to whom the notice is addressed. If notice is given by
telex, electronically transmitted facsimile or other similar form of wire or
wireless communication, such notice shall be deemed to be given and to be
effective when sent, and with respect to a telegram, such notice shall be deemed
to be given and to be effective when the telegram is delivered to the telegraph
company. If a director has designated in writing one or more reasonable
addresses or facsimile numbers for delivery of notice to him, notice sent by
mail, telegraph, telex, electronically transmitted facsimile or other form of
wire or wireless communication shall not be deemed to have been given or to be
effective unless sent to such addresses or facsimile numbers, as the case may
be.
A director may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such director. Such waiver shall be
delivered to the secretary for filing with the corporate records, but such
delivery and filing shall not be conditions to the effectiveness of the waiver.
Further, a director's attendance at or participation in a meeting waives any
required notice to him of the
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meeting unless at the beginning of the meeting, or promptly upon his later
arrival, the director objects to holding the meeting or transacting business at
the meeting because of lack of notice or defective notice and does not
thereafter vote for or assent to action taken at the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by the
board of directors pursuant to Section 2 of this Article III or, if no number is
fixed, a majority of the number in office immediately before the meeting begins,
shall constitute a quorum for the transaction of business at any meeting of the
board of directors, but if less than the majority is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of directors.
SECTION 7. INFORMAL ACTION BY DIRECTORS. Any action required or
permitted to be taken at a meeting of the directors or any committee designated
by the board of directors may be taken without a meeting if a written consent
(or counterparts thereof) that sets forth the action so taken is signed by all
of the directors entitled to vote with respect to the action taken. Such consent
shall have the same force and effect as a unanimous vote of the directors or
committee members and may be stated as such in any document. Unless the consent
specifies a different effective time or date, action taken under this Section 7
is effective at the time of date the last director signs a writing describing
the action taken, unless, before such time, any director has revoked his consent
by a writing signed by the director and received by the chairman of the board,
the president or the secretary of the corporation.
SECTION 8. TELEPHONIC MEETINGS OF DIRECTORS. The board of directors may
permit any director (or any member of a committee designated by the board) to
participate in a regular or special meeting of the board of directors or a
committee thereof through the use of any means of communication by which all
directors participating in the meeting can hear each other during the meeting. A
director participating in a meeting in this manner is deemed to be present in
person at the meeting.
SECTION 9. VACANCIES. Any director may resign at any time by giving
written notice to the corporation. Such resignation shall take effect at the
time the notice is received by the corporation unless the notice specifies a
later effective date. Unless otherwise specified in the notice of resignation,
the corporation's acceptance of such resignation shall not be necessary to make
it effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the board of directors or in any other manner
permitted by the Colorado Business Corporation Act. If the directors remaining
in office constitute fewer than a quorum of the board, the directors may fill
the vacancy by the affirmative vote of a majority of all the directors remaining
in office. The director shall hold office until the next annual shareholders'
meeting at which directors are elected.
SECTION 10. COMPENSATION. By resolution of the board of directors, any
director may be paid any one or more of the following: his expenses, if any, of
attendance at meetings, a fixed sum for attendance at each meeting, a stated
salary as director, or such other compensation as the corporation and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 11. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors or committee of the board at
which action on any corporate matter is taken shall be presumed to have assented
to all action taken at the meeting unless: (i) the director objects at the
beginning of the meeting, or promptly upon his arrival, to the holding of the
meeting or the transaction of business at the meeting and does not thereafter
vote for or assent to any action taken at the meeting; (ii) the director
contemporaneously requests that his dissent or abstention a to any specific
action taken be entered in the minutes of the meeting; or (iii) the director
causes written notice of his dissent or abstention as to any specific action to
be received by the presiding officer of the meeting before its
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adjournment or by the corporation promptly after the adjournment of the meeting.
A director may dissent to a specific action at a meeting while assenting to
others. The right to dissent to a specific action taken at a meeting of the
board of directors or a committee of the board shall not be available to a
director who voted in favor of such action.
SECTION 12. EXECUTIVE AND OTHER COMMITTEES. By resolution adopted by a
majority of all the directors in office when the action is taken, the board of
directors may designate from among its members an executive committee and one or
more other committees, and appoint one or more members of the board of directors
to serve on them. To the extent provided in the resolution, each committee shall
have all the authority of the board of directors, except that no such committee
shall have the authority to: (i) authorize distributions; (ii) approve or
propose to shareholders actions or proposals required by the Colorado Business
Corporation Act to be approved by shareholders; (iii) fill vacancies on the
board of directors or any committee thereof; (iv) amend the Articles of
Incorporation, (v) adopt, amend or repeal the bylaws; (vi) approve a plan of
merger not requiring shareholder approval; (vii) authorize or approve the
reacquisition of shares unless pursuant to a formula or method prescribed by the
board of directors; or (viii) authorize or approve the issuance or sale of
shares, or contract for the sale of shares or determine the designations and
relative rights, preferences and limitations of a class or series of shares,
except that the board of directors may authorize a committee to do so within
limits specifically prescribed by the board of directors. The committee shall
then have full power within the limits set by the board of directors to adopt
any final resolution setting forth all preferences, limitations and relative
rights of such class or series and to authorize an amendment of the Articles of
Incorporation stating the preferences, limitations and relative rights of a
class or series for filing with the Secretary of State under the Colorado
Business Corporation Act.
Sections 3, 4, 5, 6, 7, 8, 10 or 11 of this Article III, which govern
meetings, notice, waiver of notice, quorum, voting requirements and action
without a meeting of the board of directors, shall apply to committees and their
members appointed under this Section 12.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the corporation shall be a chairman
of the board, a chief executive officer, a president, a secretary and a chief
financial officer, each of whom shall be appointed by the board of directors and
shall be a natural person eighteen years of age or older. One person may hold
more than one office. The board of directors may appoint such other officers and
assistant officers, including one or more vice presidents, assistant secretaries
and assistant to the chief financial officer, as it may consider necessary.
SECTION 2. APPOINTMENT AND TERM OF OFFICE. The officers of the
corporation shall be appointed by the board of directors at each regular meeting
of the board held immediately after each annual meeting of the shareholders. If
the appointment of officers is not made at such meeting, such appointments shall
be made as determined by the board of directors. Each officer shall hold office
until the first of the following occurs: his successor shall have been duly
appointed and qualified, his death, his resignation, or his removal in the
manner provided in Section 3 of this Article IV. In the event that an officer is
employed by the corporation pursuant to an employment contract duly authorized
and approved by the board of directors, an officer may be appointed for the term
of, and in accordance with the provisions of, such employment contract.
SECTION 3. RESIGNATION AND REMOVAL. An officer may resign at any time
by giving written notice of resignation to the corporation. The resignation is
effective when the notice is received by the corporation unless the notice
specifies a later effective date.
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Any officer may be removed at any time with or without cause by the
board of directors. Such removal does not effect the contract rights, if any, of
the corporation or of the person so removed. The appointment of an officer shall
not in itself create contract rights.
SECTION 4. VACANCIES. A vacancy in any office, however occurring, may
be filled by the board of directors. If an officer resigns and his resignation
is made effective at a later date, the board of directors may permit the officer
to remain in office until the effective date and may fill the pending vacancy
before the effective date if the board of directors provide that the successor
shall not take office until the effective date. In the alternative, the board of
directors may remove the officer at any time before the effective date and may
fill the resulting vacancy.
SECTION 5. CHAIRMAN OF THE BOARD. The chairman of the board shall
preside at all meetings of shareholders and of the board of directors. He may
sign and execute all authorized instruments, contracts, or other obligations on
behalf of the corporation. He shall have such other powers and duties as may be
prescribed by the board of directors.
SECTION 6. CHIEF EXECUTIVE OFFICER. In the absence of the chairman of
the board, the chief executive officer shall preside at all meetings of
shareholders and all meetings of the board of directors. Subject to the
direction and supervision of the board of directors, the chief executive officer
shall have general and active control of its affairs and business and general
supervision of its officers, agents and employees. Unless otherwise directed by
the board of directors, the chief executive officer shall attend in person or by
substitute appointed by him, or shall execute on behalf of the corporation,
written instruments appointing a proxy or proxies to represent the corporation
at, all meetings of the stockholders of any other corporation in which the
corporation holds any stock. On behalf of the corporation, the chief executive
officer may, in person or by substitute or by proxy, execute written waivers of
notice and consents with respect to any such meetings. At all such meetings and
otherwise, the president, in person or by substitute or proxy, may vote the
stock held by the corporation, execute written consents and other instruments
with respect to such stock, and exercise any and all rights and powers incident
to the ownership of said stock, subject to the instructions, if any, of the
board of directors. The chief executive officer may sign all instruments,
contracts and other obligations which the board of directors has authorized to
be executed, and shall have such additional authority and duties as are
appropriate and customary for the office of chief executive officer, except as
the same may be expanded or limited by the board of directors from time to time.
SECTION 7. PRESIDENT. Unless otherwise determined by the Board of
Directors, the President shall be the Chief Executive Officer of the
corporation. If an officer other than the President is designated Chief
Executive Officer, the President shall perform such duties as may from time to
time be assigned by the board of directors.
SECTION 8. VICE PRESIDENTS. If appointed by the board of directors, the
vice presidents shall assist the president and shall perform such duties as may
be assigned to them by the president or by the board of directors. In the
absence of the president, the vice president, if any (or, if more than one, the
vice presidents in the order designated by the board of directors, or if the
board makes no such designation, then the vice president designated by the
president, or if neither the board nor the president makes any such designation,
the senior vice president as determined by first election to that office), shall
have the powers and perform the duties of the president.
SECTION 9. SECRETARY. The secretary shall: (i) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and the
board of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, a record of all actions taken by a committee or
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors of any committee thereof; (ii) see that all
notices are duly given in accordance with the provisions of these bylaws and as
required by law; (iii) serve as custodian of the corporate records and of the
seal of the corporation and affix the seal
<PAGE> 10
to all documents when authorized by the board of directors; (iv) keep at the
corporation's registered office or principal office a record containing the
names and addresses of all shareholders in a form that permits preparation of a
list of shareholders arranged by voting group and by class or series of shares
within each voting group, that is alphabetical within each class or series and
that shows the address of, and the number of shares of each class or series held
by, each shareholder, unless such a record shall be kept at the office of the
corporation's transfer agent or registrar; (v) maintain at the corporation's
principal office the originals or copies of the corporation's Articles of
Incorporation, Bylaws, minutes of all shareholders' meetings and records of all
action taken by shareholders without a meeting for the past three years, all
written communications within the past three years to shareholders as a group or
to the holders of any class or series of shares as a group, a list of the names
and business addresses of the current directors and officers, a copy of the
corporation's most recent corporate report filed with the Secretary of State,
and financial statements, if any, showing in reasonable detail the corporation's
assets and liabilities and results of operations for the last three years; (vi)
have general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent; (vii) authenticate records of the corporation;
and (viii) in general, perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him by the
chairman of the board, the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to
supervision by the secretary. The directors and/or shareholders may however
respectively designate a person other than the secretary or assistant secretary
to keep the minutes of their respective meetings.
Any books, records, or minutes of the corporation may be in written
form or in any form capable of being converted into written form within a
reasonable time.
SECTION 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall
be the principal financial officer of the corporation, shall have the care and
custody of all funds, securities, evidences of indebtedness and other personal
property of the corporation and shall deposit the same in accordance with the
instructions of the board of directors. Subject to the limits imposed by the
board of directors, he shall receive and give receipts and acquittances for
money paid in on account of the corporation, and shall pay out of the
corporation's funds on hand all bills, payrolls and other just debts of the
corporation of whatever nature upon maturity. He shall perform all other duties
incident to the office of the chief financial officer and, upon request of the
board, shall make such reports to it as may be required at any time. He shall,
if required by the board, give the corporation a bond in such sums and with such
sureties as shall be satisfactory to the board, conditioned upon the faithful
performance of his duties and for the restoration to the corporation of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation. He shall have such
other powers and perform such other duties as may from time to time be
prescribed by the board of directors, the chairman of the board, or the
president. The assistants to the chief financial officer, if any, shall have the
same powers and duties, subject to the supervision of the chief financial
officer.
The chief financial officer shall also be the principal accounting
officer of the corporation, unless otherwise specified by the board of
directors. He shall prescribe and maintain the methods and systems of accounting
to be followed, keep complete books and records of accounts as required by the
Colorado Business Corporation Act, prepare and file all local, state and federal
tax returns, prescribe and maintain an adequate system of internal accounting
controls and prepare and furnish to the chairman of the board, the president and
the board of directors statements of accounts showing the financial position of
the corporation and the results of its operations.
SECTION 11. SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving a salary by reason of the fact that he is also a director of the
corporation.
<PAGE> 11
ARTICLE V
CONTRACTS, LOANS AND CHECKS
SECTION 1. CONTRACTS. The board of directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in the manner that shall from time to time be
determined by resolution of the board of directors.
ARTICLE VI
SHARES
SECTION 1. CERTIFICATES. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of shareholders. If the shares are represented by
certificates, such shares shall be represented by consecutively numbered
certificates signed, either manually or by facsimile, in the name of the
corporation by the chairman of the board, the president or one or more vice
presidents, and the secretary or an assistant secretary. In case any officer who
has signed or whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before such certificate is issued, such
certificate may nonetheless be issued by the corporation with the same effect as
if he were such officer at the date of its issue. All certificates shall be
consecutively numbered, and the names of the owners, the number of shares, and
the date of issue shall be entered on the books of the corporation. Each
certificate representing shares shall state upon its face: (i) that the
corporation is organized under the laws of Colorado; (ii) the name of the person
to whom issued; (iii) the number and class of the shares and the designation of
the series, if any, that the certificate represents; (iv) the par value, if any,
of each share represented by the certificate; (v) a conspicuous statement, on
the front or the back, that the corporation will furnish to the shareholder, on
request in writing and without charge, information concerning the designations,
preferences, limitations, and relative rights applicable to each class, the
variations in preferences, limitations, and rights determined for each series,
and the authority of the board of directors to determine variations for future
classes or series; and (vi) any restrictions imposed by the corporation under
the transfer of the shares represented by the certificate.
SECTION 2. CONSIDERATION FOR SHARES. Certificated or uncertificated
shares shall not be issued until the shares represented thereby are fully paid.
The board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the corporation unless the note is negotiable and is secured by collateral,
other than the shares being purchased, having a fair market value at least equal
to the principal amount of the note. For purposes of this Section 2, a
"promissory note" means a negotiable instrument on which there is an obligation
to pay independent of collateral and does not include a non-recourse note.
SECTION 3. LOST CERTIFICATES. In case of the alleged loss, destruction
or mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors
<PAGE> 12
may, in its discretion, require an affidavit of lost certificate and/or a bond
in such form and amount and with such surety as it may determine before issuing
a new certificate.
SECTION 4. TRANSFER OF SHARES. Upon surrender to the corporation or to
a transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and at the place designated by the board
of directors.
Except as otherwise expressly provided in Sections 10 and 12 of Article
II of these Bylaws, and except for the assertion of dissenters' rights to the
extent provided in the Colorado Business Corporation Act, the corporation shall
be entitled to treat the registered holder of any shares of the corporation as
the owner thereof for all purposes, and the corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or rights
deriving from such shares on the part of any person other than the registered
holder, including without limitation any purchaser, assignee or transferee of
such shares or rights deriving from such shares, unless and until such other
person becomes the registered holder of such shares, whether or not the
corporation shall have either actual or constructive notice of the claimed
interest of such other person.
SECTION 5. TRANSFER AGENT, REGISTRARS AND PAYING AGENTS. The board may,
at its discretion, appoint one or more transfer agents, registrars and agents
for making payment upon any class of stock, bond, debenture or other security of
the corporation. Such agents and registrars may be located either within or
outside Colorado. They shall have such rights and duties and shall be entitled
to such compensation as may be agreed.
SECTION 6. DISTRIBUTIONS TO SHAREHOLDERS. As used in this Section 6,
"distribution" means a direct or indirect transfer by the corporation of money
or other property, except its own shares, or incurrence of indebtedness by the
corporation, to or for the benefit of any of its shareholders in respect of any
of its shares. A distribution may be in any form, including a declaration or
payment of a dividend; a purchase, redemption, or other acquisition of shares;
or distribution of indebtedness. The board of directors may authorize, and the
corporation may make, distributions to the shareholders subject to the
limitations set forth in this Section 6. The board of directors may fix in
advance a date as the record date for determining shareholders entitled to a
distribution, other than one involving a purchase, redemption, or other
acquisition of the corporation's shares. If a record date is necessary but no
record date is so fixed in advance, the record date is the date the board of
directors authorizes the distribution.
No distribution may be made if, after giving it effect: (i) the
corporation would not be able to pay its debts as they become due in the usual
course of business; or (ii) the corporation's total assets would be less than
the sum of its total liabilities plus (unless the Articles of Incorporation
permit otherwise) the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
receiving the distribution. The board of directors may base a determination that
a distribution is not prohibited either on financial statements prepared on the
basis of accounting practices and principles that are reasonable under the
circumstances or on a fair valuation or other method that is reasonable under
the circumstances.
Except as provided elsewhere in this Section 6, the time for measuring
the effect of a distribution under this Section 6 is: (i) in the case of
distribution by purchase, redemption, or other acquisition of the corporation's
shares, as of the earlier of: (A) the date money or other property is
transferred or debt is incurred by the corporation; or (B) the date the
shareholder ceases to be a shareholder with respect to the acquired shares; (ii)
in the case of any other distribution of indebtedness, as of the date the
indebtedness is distributed; and (iii) in all other cases, as of either: (A) the
date the distribution is
<PAGE> 13
authorized, if the payment occurs within one hundred twenty days after the date
of authorization; or (B) the date the payment is made, if it occurs more than
one hundred twenty days after the date of authorization.
Indebtedness of a corporation, including indebtedness issued as a
distribution, is not considered a liability for purposes of determinations under
this Section 6 if its terms provide that payment of principal and interest
thereon are made only if and to the extent that payment of a distribution to
shareholders could then be made under Section 7-106-401 of the Colorado Business
Corporation Act. If the indebtedness is issued as a distribution, each payment
of principal or interest thereon is treated as a distribution the effect of
which is measured on the date the payment is actually made.
SECTION 7. SHARE OPTIONS AND OTHER RIGHTS. As used in this Section 7,
"rights" means rights, options, warrants, or convertible securities entitling
the holders thereof to purchase, receive, or acquire shares or fractions of
shares of the corporation or assets or debts or other obligations of the
corporation. The corporation may create and issue rights, except as precluded or
limited by provisions contained in the Articles of Incorporation at the time of
such creation or issuance. The board of directors shall determine the terms upon
which the rights are issued, their form and content, and the consideration, if
any, for which shares or fractions of shares, assets, or debts or other
obligations of the corporation are to be issued pursuant to the rights.
ARTICLE VII
INSURANCE AND BENEFITS
SECTION 1. INSURANCE. By action of the board of directors,
notwithstanding any interest of the directors in the action, the corporation may
purchase and maintain insurance, in such scope and amounts as the board of
directors deems appropriate, on behalf of any person who is or was a director,
officer, employee, fiduciary or agent of the corporation, or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary or agent of any other foreign or domestic profit or
nonprofit corporation or of any partnership, joint venture, trust, profit or
nonprofit unincorporated association, limited liability company, or other
enterprise or employee benefit plan, against any liability asserted against, or
incurred by, him in that capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such
liability under applicable law. Any such insurance may be procured from any
insurance company designated by the board of directors of the corporation,
whether such insurance company is formed under the laws of Colorado or any other
jurisdiction of the United States or elsewhere, including any insurance company
in which the corporation has an equity interest or any other interest, through
stock ownership or otherwise.
SECTION 2. BENEFITS. The board of directors shall have authority to
provide for, or to delegate authority to an appropriate committee to provide
for, any and all manner of benefits or payments, however characterized or
described, to directors, officers and employees and to their estates, families,
dependents or beneficiaries on account of services rendered by the directors,
officers and employees to the corporation.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. SEAL. The board of directors may adopt a corporate seal,
which shall be circular in form and shall contain the name of the corporation,
the state of incorporation, and the words "Corporate Seal".
SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be as
established by the board of directors.
<PAGE> 14
SECTION 3. AMENDMENTS. The board of directors shall have power, to the
maximum extent permitted by the Colorado Business Corporation Act, to make,
amend and repeal the Bylaws of the corporation at any regular or special meeting
of the board unless the shareholders, in making, amending or repealing a
particular Bylaw, expressly provide that the directors may not amend or repeal
such bylaw. The shareholders also shall have the power to make, amend or repeal
the Bylaws of the corporation at any annual meeting or at any special meeting
called for that purpose.
SECTION 4. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder
writings consenting to action, and other documents or writings shall be deemed
to have been received by the corporation when they are actually received: (i) at
the registered office of the corporation in Colorado; (ii) at the principal
office of the corporation (as that office is designated in the most recent
document filed by the corporation with the Secretary of State designating a
principal office); (iii) by the secretary of the corporation wherever the
secretary may be found; or (iv) by any other person authorized from time to time
by the board of directors or the president to receive such writings, wherever
such person is found.
SECTION 5. GENDER. The masculine gender is used in these Bylaws as a
matter of convenience only and shall be interpreted to include the feminine and
neuter genders as the circumstances indicate.
SECTION 6. CONFLICTS. In the event of any irreconcilable conflict
between these Bylaws and either the corporation's Articles of Incorporation or
applicable law, the latter shall control.
SECTION 7. DEFINITIONS. Except as otherwise specifically provided in
these Bylaws, all terms used in these Bylaws shall have the same definition as
in the Colorado Business Corporation Act.
The foregoing Bylaws are the true and correct Bylaws of FirsTier
Bancorp, Inc. as of September 13, 1999.
/s/ Timothy D. Wiens
------------------------------------------
Timothy D. Wiens, Chief Executive
<PAGE> 1
EXHIBIT 10.14
ACTION BY THE UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS AND SHAREHOLDERS
OF FIRSTIER BANCORP, INC.
The following action by unanimous written consent of the Board of
Directors and shareholders of FirsTier Bancorp, Inc. (the "Company") was adopted
as of the 15th day of September, 1999, and such action evidences their waiver of
any right to dissent:
WHEREAS, the Company desires to attract and retain talented employees
to further the future success of the Company by way of offering ownership
incentives in the Company which derive value from the success of the Company;
NOW, THEREFORE. BE IT
RESOLVED, that the attached 1999 Stock Incentive Plan of the Company is
hereby approved and adopted as the Company's incentive plan for the
purposes of encouraging the successful conduct and development of the
business of the Company; and be it
FURTHER RESOLVED, that up to 1,700,000 shares of the Company's common
stock may be issued pursuant to the Plan; and be it
FURTHER RESOLVED, that upon the issuance of any shares of common stock
under the Plan pursuant to the terms of the Plan and any given option
agreement, such shares shall be fully paid and nonassessable.
FURTHER RESOLVED, that a non-qualified stock option for 500,000 shares
of common stock in substantially the form of the option agreement
attached hereto be granted to Timothy D. Wiens; furthermore, such
option shall contain an exercise price equal to the public Offering
price of the Company's common stock in its public offering through
Piper Jaffray. and such option shall be for a term of 10 years.
WITNESS the execution hereof the day and year first above written.
BOARD OF DIRECTORS AND SHAREHOLDERS
/s/ Joel H. Wiens /s/ Timothy D. Wiens
- -------------------------- -----------------------------
Joel H. Wiens Timothy D. Wiens
Director and Shareholder Director and Shareholder
/s/ Max W. Revell /s/ Michael J. Nelson
- -------------------------- -----------------------------
Max W. Revel Michael J. Nelson
Shareholder Director and Shareholder
/s/ Joel H. Wiens /s/ Timothy D. Wiens
- -------------------------- -----------------------------
Joel H. Wiens, Trustee Timothy D. Wiens Agent for
Wiens Family Trust Jan, Lindsay and Jordan Wiens
/s/ Jim Prince
- --------------------------
Jim Prince, Shareholder
<PAGE> 2
FIRSTIER BANCORP, INC.
1999 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of the FirsTier Bancorp, Inc. 1999 Stock Incentive is to
provide incentives and rewards for Employees, non-Employee Directors and
consultants of the Corporation and its Subsidiaries (i) to support the execution
of the Corporation's business strategies and the achievement of its goals, (ii)
to associate the interests of Employees, non-Employee Directors and consultants
with those of the Corporation's stockholders, and (iii) to help provide a
competitive compensation program that will enable the Corporation to attract and
retain the highest quality Employees, non-Employee Directors and consultants.
2. DEFINITIONS
(a) "Award" means individually or collectively Restricted Stock, Stock
Options (including incentive stock options under Section 422 of the Code), Stock
Appreciation Rights or Performance Shares granted hereunder.
(b) "Award Period" means the period of time during which a Stock
Appreciation Right which has not been granted pursuant to an option may be
exercised. The Award Period shall be set forth in the Award Summary issuing the
Stock Appreciation Right to the person granted the Award.
(c) "Award Summary" means a written summary or agreement setting forth
the terms and conditions of each Award made under this Plan.
(d) "Board" means the Board of Directors of the Corporation.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Committee" means the Compensation Committee of the Board or such
other committee of the Board consisting of at least two members as may be
designated by the Board from time to time to administer this Plan; provided,
however, that no person may serve on the Committee who would not be considered
(i) a "non-employee director" within the meaning of Rule 16b-3 promulgated under
the Exchange Act, and (ii) an "outside director" within the meaning of Section
162(m) of the Code.
(g) "Common Stock" means the Common Stock of the Corporation.
(h) "Corporation" means FirsTier Bancorp, Inc., a Colorado corporation.
<PAGE> 3
(i) "Director" means a non-Employee director of the Corporation. For
purposes of Awards granted pursuant to this Plan, the term "Director" may, at
the discretion of the Board, include directors of Subsidiaries.
(j) "Eligible Person" or "Eligible Persons" has the meaning assigned to
it in Section 3.
(k) "Employee" means an employee of the Corporation or a Subsidiary.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Exercise Period" means the period or periods during which a Stock
Appreciation Right is exercisable as described in Section 8(b).
(n) "Fair Market Value" means the fair market value of the Common Stock
as of the date on which a determination is to be made, as determined by the
Board.
(o) "Option Period" or "Option Periods" means the period or periods
during which an option is exercisable as described in Section 7(e).
(p) "Option Price" means the price, expressed on a per share basis, for
which the Common Stock can be acquired by the holder of the option pursuant to
the exercise of such option.
(q) "Participant" means an Eligible Person who has been granted an
Award under this Plan.
(r) "Performance Share" is an Award granted under Section 9.
(s) "Plan" means this FirsTier Bancorp, Inc.1999 Stock Incentive Plan.
(t) "Plan Year" means a twelve-month period beginning with January 1 of
each year.
(u) "Stock Appreciation Right" is an Award granted under Section 8.
(v) "Subsidiary" means any corporation or other entity, whether
domestic or foreign, in which the Corporation has or obtains, directly or
indirectly, a proprietary interest of more than 50% by reason of stock ownership
or otherwise.
3. ELIGIBILITY
Awards under the Plan may be granted to Employees, Directors and
consultants of the Corporation and its Subsidiaries ("Eligible Person" or
"Eligible Persons"). Notwithstanding the foregoing, for purposes of the Plan,
and the Plan only, no person shall be granted an Award under the Plan unless
such person is an Employee, Director or consultant of the Corporation or a
Subsidiary.
<PAGE> 4
Awards may be issued to the same person on more than one occasion.
4. PLAN ADMINISTRATION
(a) Board of Directors. The Plan shall be administered by the Board of
Directors of the Corporation or by the Committee (unless the context otherwise
requires, the Board of Directors of the Corporation or Committee thereof as
provided herein shall be referred to herein as the "Board"). The Board shall
periodically make determinations with respect to the participation of Eligible
Persons in this Plan and, except as otherwise required by law or this Plan, the
grant terms of Awards including vesting schedules, price, length of relevant
performance, restriction or option periods, termination rights, payment
alternatives or other means of payment consistent with the purposes of this
Plan, and such other terms and conditions as the Board deems appropriate. Awards
may be granted as replacements of Awards outstanding under the Plan or under
previous stock incentive plans maintained by the Corporation.
(b) Construction. The interpretation and construction by the Board of
any provisions of the Plan, or of any Award granted under it, shall be final. No
member of the Board shall be liable for any action or determination made in good
faith with respect to the Plan, option or restricted stock granted under it.
(c) Indemnification. The Board shall have authority to interpret and
construe the provisions of this Plan and the Award Summaries and make
determinations pursuant to any Plan provision or Award Summary which shall be
final and binding on all persons. No member of the Board shall be liable for any
action or determination made in good faith, and the members shall be entitled to
indemnification and reimbursement in the manner provided in the Corporation's
Articles of Incorporation and Bylaws, and to the fullest extent allowed by law.
5. STOCK SUBJECT TO PROVISIONS OF PLAN
The stock for which Awards may be granted and which may be sold
pursuant to the Plan shall not, subject to Sections 13 and 15, exceed in the
aggregate 1,700,000 shares of the Corporation's common stock. Such shares may be
authorized and unissued shares or may be issued shares reacquired by the
Corporation. All shares for which an Award is granted under the Plan, which for
any reason are not issued as a result of non-exercise of such Award or
fulfillment of the conditions and terms of such Award, shall be available for
the granting of further Awards under the Plan.
6. AWARDS TO EMPLOYEES UNDER PLAN: RESTRICTED STOCK AWARDS
(a) Grants of Shares of Restricted Stock. An award made pursuant to
this Section 6 shall be granted in the form of shares of common stock,
restricted as provided in this Section 6 ("Restricted Stock"). Shares of
Restricted Stock shall be issued to the Eligible Person upon the payment of
consideration as determined by the Board. The shares of Restricted Stock shall
be issued in the name of the Eligible Person and shall bear a restrictive legend
prohibiting sale,
<PAGE> 5
transfer, pledge or hypothecation of the shares of Restricted Stock until the
expiration of the restriction period.
The Board may also impose such other restrictions and conditions on the
shares of Restricted Stock as it deems appropriate, including but not limited to
requiring the Eligible Person to keep the Restricted Stock certificates, duly
endorsed, in the custody of the Corporation while the restrictions remain in
effect.
(b) Restriction Period. At the time a Restricted Stock award is made,
the Board may establish a restriction period applicable to such award which
shall not be more than ten (10) years. Each Restricted Stock award may have a
different restriction period, at the discretion of the Board. In addition to or
in lieu of a restriction period, the Board may establish a performance goal
which must be achieved as a condition to the retention of the Restricted Stock.
The performance goal may be based on the attainment of specified types of
performance measurement criteria, which may differ as to various Eligible
Persons or classes or categories of Eligible Persons. Such criteria may include,
without limitation, the attainment of certain performance levels by the Eligible
Person, the Corporation, a department or division of the Corporation and/or a
group or class of Eligible Persons. Any such performance goals, together with
the ranges of Restricted Stock awards for which the Eligible Persons may be
eligible shall be set from time to time by the Board and shall be timely
communicated in writing to the Eligible Persons in advance of the commencement
of the performance of services to which such performance goals relate.
(c) Forfeiture or Payout of Award. In the event a Participant ceases to
be an Eligible Person during a restriction period, or in the event performance
goals attributable to a Restricted Stock award are not achieved, subject to the
terms of each particular Restricted Stock award, a Restricted Stock award is
subject to forfeiture of the shares of common stock which had not previously
been removed from restriction under the terms of the award.
Any shares of Restricted Stock which are forfeited will be transferred
to the Corporation. Any consideration paid by the Eligible Person for the
Restricted Stock shall be returned, without interest, to such Eligible Person
upon forfeiture.
Upon completion of the restriction period and satisfaction of any
performance-goal criteria, all restrictions upon the award will expire and new
certificates representing the award will be issued or released without the
restrictive legend. As a condition precedent to receipt of the certificates, the
Eligible Person (or the designated beneficiary or personal representative of the
Eligible Person) will agree to make payment to the Corporation in the amount of
any taxes, payable by the Eligible Person, which are required to be withheld
with respect to such shares of common stock.
<PAGE> 6
7. STOCK OPTIONS
(a) Grant of Option. One or more options may be granted to any Eligible
Person. Upon the grant of an option to an Eligible Person, the Board shall
specify whether the option is intended to constitute a non-qualified stock
option or an incentive stock option; provided, however, that incentive stock
options may only be issued to persons who are Employees. An incentive stock
option is an option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended.
(b) Stock Option Agreement. Each option granted under the Plan shall be
evidenced by a written stock option agreement between the Corporation and the
Eligible Person containing such terms and conditions as the Board determines,
including, without limitation, provisions to qualify Incentive Stock Options as
such under Section 422 of the Code. Such agreements shall incorporate the
provisions of this Plan by reference. The date of granting an option is the date
specified in the written stock option agreement which is signed by the Eligible
Person and the Corporation.
(c) Exercise Price. The exercise price of the common stock offered to
Employees persons under the Plan by grant of an incentive stock option to
purchase common stock may not be less than the fair market value of the common
stock at the date of grant; provided, however, that the exercise price shall not
be less than 110% of the fair market value of the common stock on the date of
grant in the event an Employees owns 10% or more of the common stock of the
Corporation. The exercise price of the common stock offered to Eligible Persons
under the Plan by grant of a non-qualified stock option may be less than fair
market value of the common stock at the date of grant.
(d) Term of Options. The terms of each option shall be no more than ten
years from the date of grant as determined by the Board but shall be subject to
earlier termination as subsequently provided; however, if an incentive stock
option is granted to an Employee who, as of the date of grant, owns 10% or more
of the Corporation's Common Stock, the term of the option shall be no more than
five years.
(e) Schedule For Exercise. Immediately after grant of an option, it may
be exercised (subject to sections (f) and (g) of this Section) on terms and
conditions as the Board shall so determine on the date of grant. The Board may
limit an option by restricting its exercise in whole or in part for specified
periods in its sole discretion.
(f) Manner of Exercise
(i) Notice to The Corporation. Each exercise of an option
granted shall be made by the delivery by the optionee (or his legal
representative, as the case may be) of written notice of such election to the
Corporation, either in person or by certified mail to the Corporation's mailing
address, stating the number of shares with respect to which the option is being
exercised and specifying a date on which the shares will be taken and payment
made therefor. Such date shall be at least 30 days after such notice is given.
(ii) Issuance of Stock. On the date specified in the notice of
election, the Corporation shall deliver, or cause to be delivered, to the
optionee (or his legal representative, as the case may be), stock certificates
for the number of shares with respect to which the option is being exercised,
against payment therefor. Delivery of the certificate(s) may be made at the
office of the Corporation or at the office of a transfer agent appointed for the
transfer of shares of the Corporation, as the Corporation
<PAGE> 7
shall determine. Shares shall be issued in the name of the optionee (or his
legal representative, as the case may be). No shares shall be issued until full
payment therefor shall have been made by cash or by certified check equal to the
exercise price; provided however, that the Board may adopt customary "cashless
exercise" provisions if deemed appropriate. In the event of a failure on the
date stated to pay for and accept delivery of the certificate(s) representing
the full number of shares specified in the notice of election, the option shall
become inoperative only as to those shares which are not paid for and accepted,
but shall continue with respect to any remaining shares subject to the option as
to which exercise has not yet been made.
(g) Purchase of Investment
(i) Written Agreement. Unless a registration statement under
the Securities Act of 1933 is then in effect with respect to the common stock an
Eligible Person receives upon exercise of his or her option, an Eligible Person
shall acquire the common stock he or she receives upon exercise of the option
for investment and not for resale or distribution, and he or she shall furnish
the Corporation with a written statement to that effect when exercising the
option and a reference to such investment warranty shall be inscribed on the
stock certificate(s).
(ii) Registration Requirement. Each option shall be subject to
the requirement that, if at any time the Board determines that the listing,
registration or qualification of the common stock subject to the option upon any
securities exchange or quotation system, or under any state or Federal law is
necessary or desirable as a condition of, or in connection with, the issuance of
the common stock thereunder, the option may not be exercised in whole or in part
unless such listing, registration or qualification shall have been effected or
obtained (and the same shall have been free of any conditions not acceptable to
the Board).
(h) Date of Grant. Each option granted under the Plan, unless otherwise
specifically indicated, shall be granted as of the date of the Board's
resolution conferring the option ("date of grant").
(i) Special Limitations on Exercise of Incentive Stock Options. The
aggregate fair market value (determined at the time the incentive stock option
is granted) of the common stock with respect to which any incentive stock option
is first exercisable during any calendar year shall not exceed $100,000.
8. STOCK APPRECIATION RIGHTS
(a) Grant of Stock Appreciation Rights. One or more Stock Appreciation
Right awards may be granted to Eligible Persons. Stock Appreciation Rights may
be granted under the Plan in tandem with an option either at the time of grant
or by amendment or may be separately awarded. Stock Appreciation Rights shall be
subject to such terms and conditions not inconsistent with the Plan as the Board
shall impose.
(b) Right to Exercise; Exercise Period. A Stock Appreciation Right
issued in tandem with an option shall be exercisable to the extent the option is
exercisable. A Stock Appreciation Right issued independent of an option shall be
exercisable pursuant to such terms and conditions established in the grant.
<PAGE> 8
(c) Automatic Redemption of Unexercised Stock Appreciation Rights. If
on the last day of the Option Period, in the case of a Stock Appreciation Right
granted in tandem with an option, or the specified Award Period, in the case of
a Stock Appreciation Right issued independent of an option, the Participant has
not exercised such Stock Appreciation Right, then such Stock Appreciation Right
shall be automatically redeemed by the Corporation for an amount equal to the
payment that would otherwise have been made to the Participant if the
Participant had chosen to exercise the Stock Appreciation Right on the last day
of the Option Period or the specified Award Period, as the case may be.
(d) Rights Upon Exercise. An exercisable Stock Appreciation Right
granted in tandem with an option shall entitle the Participant to surrender
unexercised the option or any portion thereof to which the Stock Appreciation
Right is attached, and to receive in exchange for the Stock Appreciation Right a
payment (in cash or shares of Common Stock or a combination thereof as described
below) equal to the Fair Market Value of one share of Common Stock at the date
of exercise minus the Option Price times the number of shares called for by the
Stock Appreciation Right (or portion thereof) which is so exercised. For
example, assume that a Participant is granted a tandem Award of an option to
purchase 1,000 shares of Common Stock at an Option Price of $2.00 per share and
1,000 Stock Appreciation Rights. In such a case, the exercise of 700 options by
the Participant would relinquish and terminate 700 Stock Appreciation Rights;
similarly, the exercise of the remaining 300 Stock Appreciation Rights would
relinquish and terminate the remaining 300 options. If the Fair Market Value of
the Stock was $5.00 per share at both the time of the exercise of the options
and Stock Appreciation Rights, then the Participant would receive 700 shares of
Common Stock upon payment of $1,400 (700 times the Option Price of $2.00) and
the Corporation would pay the Participant $900 upon the exercise of the 300
Stock Appreciation Rights (($5.00 minus $2.00) times 300).
With respect to the issuance of Stock Appreciation Rights which are not
granted in tandem with an option, the Board shall specify upon the date of grant
of the Stock Appreciation Right whether the Stock Appreciation Right is a
"regular" Stock Appreciation Right or a "book value" Stock Appreciation Right.
Upon the exercise of a "regular" Stock Appreciation Right, the Participant will
receive a payment equal to the Fair Market Value of one share of Stock at the
date of exercise minus the Fair Market Value of one share of Common Stock as of
the Date of Grant of the Stock Appreciation Right times the number of shares
called for by the Stock Appreciation Right (or portion thereof) which is so
exercised. Upon the exercise of a "book value" Stock Appreciation Right, the
Participant will receive a payment equal to the Book Value of one share of Stock
at the date of exercise minus the Book Value of one share of Common Stock as of
the Date of the Grant of the Stock Appreciation Right times the number of shares
called for by the Stock Appreciation Right (or portion thereof) which is so
exercised.
The value of any Common Stock to be received upon exercise of a Stock
Appreciation Right shall be the Fair Market Value of the Stock on such date of
exercise. To the extent that a Stock Appreciation Right issued in tandem with an
option is exercised, such option shall be deemed to have been exercised, and
shall not be deemed to have lapsed.
(e) Transferability. The Board may impose such restrictions on
transferability of Stock Appreciation Rights, if any, as it may in its sole
discretion determine; provided however, that Stock
<PAGE> 9
Appreciation Rights issued in tandem with the grant of an incentive stock option
must be subject to the same transferability restriction as the incentive stock
option itself.
9. PERFORMANCE SHARES
(a) Grant of Performance Shares. One or more Performance Shares awards
may be granted to Eligible Persons. Awards made pursuant to this Section 9 shall
be granted in the form of Performance Shares, subject to such terms and
conditions not inconsistent with the Plan as the Board shall impose. Performance
Shares shall be issued to the Participant without the payment of consideration
by the Participant. Awards shall be based on the attainment of specified types
and combination of performance measurement criteria, which may differ as to
various Participants or classes or categories of Participants. Such criteria may
include, without limitation, the attainment of certain performance levels by the
individual Participant, the Corporation, a department or division of the
Corporation and/or a group or class of Participants.
(b) Performance Period. The measuring period to establish the
performance criteria set forth in a Performance Share Award shall be determined
by the Board. A Performance Share Award may initially provide, or the Board may
at any time thereafter, but no more frequently than once in any six (6) month
period, amend it to provide, for waiver or reduction of the measuring period
and, if appropriate, for adjustment of the performance criteria set forth in the
Performance Share Award, upon the occurrence of events determined by the Board
in its sole discretion to justify such waiver, reduction or adjustment.
(c) Form of Payment. Upon the completion of the applicable measuring
period, a determination shall be made by the Board in accordance with the Award
as to (i) the extent to which performance criteria have been attained, (ii) the
satisfaction of any other terms and conditions with respect to the Award, and
(iii) the number of shares of Common Stock to be awarded to the Participant. The
appropriate number of shares of Common Stock shall thereupon be issued to the
Participant in accordance with the Award in satisfaction of such Performance
Share Award.
10. AWARD SUMMARIES
Each Award under this Plan shall be evidenced by an Award Summary.
Delivery of an Award Summary to each Participant shall constitute an agreement
between the Corporation and the Participant as to the terms and conditions of
the Award.
11. OTHER TERMS AND CONDITIONS
(a) Assignability. Except as otherwise provided below, no Award shall
be assignable or transferable except by will or the laws of descent and
distribution and, during the lifetime of a Participant, the Award shall be
exercisable only by such Participant or such Participant's guardian or legal
representative. The Board, in its discretion, may permit a Participant during
their lifetime, to transfer a non-qualified stock option, for no consideration,
to or for the benefit of the Participant's immediate family (including a trust
for the benefit of the Participant's immediate family) or to a partnership or
limited liability company for one or more members of the Participant's immediate
family), subject to such limits as the Board may establish, and the transferee
shall remain subject to all the terms and conditions applicable to the Award
prior to such transfer. Any vesting period
<PAGE> 10
applicable to an Award shall, however, continue to be measured in terms of the
Participant's employment or service to the Corporation or its Subsidiaries. The
term "immediate family" shall mean the Participant's spouse, parents, children,
stepchildren, adoptive children, sisters, brothers and grandchildren (and, for
these purposes, shall also include the Participant).
(b) Termination of Employment or Relationship. If the employment or
relationship of a Participant as identified in his or her particular option
and/or Stock Appreciation Right agreement terminates for any reason other than
death or total and permanent disability, any options and/or Stock Appreciation
Rights granted to the Participant under the Plan which have not been exercised
shall be canceled, except that such an option and/or Stock Appreciation Right
may be exercised within three months after such termination of such relationship
to the extent the option and/or Stock Appreciation Right was exercisable on the
date of termination of such relationship. The Plan will not confer upon any
Participant any right with respect to continuance of such relationship with the
Corporation; nor will it interfere in any way with the Corporation's right to
terminate such relationship at any time.
In the event of the death of a Participant, any option and/or Stock
Appreciation Right held by him or her at the time of his or her death shall be
transferred as provided in his will or as determined by the laws of descent and
distribution, and the terms of the option and/or Stock Appreciation Right may
provide that it may be exercised by the estate of the Participant, or by any
person who acquired such option and/or Stock Appreciation Right by bequest or
inheritance from the Participant, at any time or from time to time within three
months after the date of death (such date to be determined by the Board), but
not thereafter, to the extent the option and/or Stock Appreciation Right was
exercisable on such date.
In the event of permanent disability (within the meaning of section
22(e)(3)) of a Participant, any option and/or Stock Appreciation Right granted
pursuant to the Plan and held by him or her may be exercised by the Participant
or his or her representative at any time or from time to time within one year
after the date of termination (such date to be determined by the Board), but not
thereafter, to the extent the option and/or Stock Appreciation Right was
exercisable on such date.
(c) Rights as a Stockholder. An Eligible Person shall have all voting,
dividend, liquidation and other rights with respect to Common Stock in
accordance with its terms received by him or her as a Restricted Stock award
upon his or her becoming the holder of record of such Common Stock; provided,
however, that the Eligible Person's right to sell, encumber or otherwise
transfer such Common Stock shall be subject to the restrictions set forth in the
grant of the Award and elsewhere in this Plan. A Participant shall not, by
reason of any option and/or Stock Appreciation Right granted pursuant to this
Plan, have any rights of a stockholder of the Corporation until the date of
issuance of the stock certificate(s) to him or her in respect of exercise of an
option and/or Stock Appreciation Right granted hereunder.
(d) Payments by Participants. The Board may determine that Awards for
which a payment is due from a Participant may be payable: (i) in U.S. dollars by
personal check, bank draft or money order payable to the order of the
Corporation, by money transfers or direct account debits; (ii) through the
delivery or deemed delivery based on attestation to the ownership of shares of
Common Stock held by the payor for at least six months, with a Fair Market Value
equal to the total payment due; (iii) by a combination of the methods described
in (i) and (ii) above; (iv) in the case of a non-qualified stock option, by
authorizing a third party to sell shares of Common Stock (or a
<PAGE> 11
sufficient portion of the shares) acquired upon exercise of the option and remit
to the Corporation a sufficient portion of the sale proceeds to pay the entire
exercise price and any tax withholding resulting from such exercise, or (v) by
such other methods as the Board may deem appropriate.
(e) Withholding. The Corporation shall have the right to deduct from an
Award pursuant to the Plan any federal, state or local taxes as it deems to be
required by law to be withheld with respect to such award. In the case of awards
paid in Common Stock, the Eligible Person or other person receiving such Common
Stock may be required to pay to the Corporation the amount of any such taxes
which the Corporation is required to withhold with respect to such Common Stock.
At the request of an Eligible Person, or as required by law, such sums as may be
required for the payment of any estimated or accrued income tax liability may be
withheld and paid over to the governmental entity entitled to receive the same.
The Board may from time to time establish procedures for withholding of Common
Stock.
12. AMENDMENTS
The Board (but not the Committee) may alter, amend, suspend or
discontinue this Plan to the extent permitted by law; provided, however, that no
alteration, amendment, suspension or discontinuance of this Plan shall adversely
affect any right acquired by any Participant under an Award granted before the
date of such alteration, amendment, suspension or discontinuance of this Plan
without the written consent of the Eligible Person to whom the stock award has
been granted. Any such action of the Board may be taken without the approval of
the Corporation's stockholders, but only to the extent that such stockholder
approval is not required by applicable law or regulation, including specifically
Section 422 of the Code and the rules or policies of the primary exchange or
trading system on which the Common Stock is then traded.
13. RECAPITALIZATION
The aggregate number of shares of Common Stock as to which Awards may
be granted hereunder, the number of shares thereof covered by each outstanding
Award, and the price per share thereof in each such Award, shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a subdivision or consolidation of shares
or other capital adjustment, or the payment of a stock dividend or other
increase or decrease in such shares, effected without receipt of consideration
by the Corporation, or other change in corporate or capital structure; provided,
however, that any fractional shares resulting from any such adjustment shall be
eliminated. The Board shall make the foregoing changes and any other changes,
including changes in the classes of securities available, to the extent
necessary or desirable to preserve the intended benefits of this Plan for the
Corporation and the Participants in the event of any other reorganization,
recapitalization, merger, consolidation, spin-off, extraordinary dividend or
other distribution or similar transaction.
14. NO RIGHT TO EMPLOYMENT
No person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant, Director or
consultant the right to be retained in the employ of the Corporation or a
Subsidiary; provided, however, that this Section 14 shall not in any way modify
or void any written employment agreement, consulting agreement or other similar
<PAGE> 12
agreement between the Corporation and the Participant. The Corporation and each
Subsidiary further expressly reserve the right at any time to dismiss a
Participant free from any liability, or any claim under this Plan, except as
provided herein or in any Award Summary issued hereunder.
15. CHANGE IN CONTROL
(a) Discontinuation of the Plan. The Plan shall be discontinued in the
event of the dissolution or liquidation of the Corporation or in the event of a
Reorganization (as hereinafter defined) in which the Corporation is not the
surviving or acquiring company, or in which the Corporation is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization and no plan or agreement respecting the Reorganization is
established which specifically provides for the continuation of the Plan and the
change, conversion, or exchange of the Common Stock relating to existing Awards
under this Plan for securities of another corporation. Upon the dissolution of
the Plan in connection with an event described in this subsection (a), all
Awards shall become fully vested and unrestricted and all outstanding options
and Stock Appreciation Rights shall become immediately exercisable by the holder
thereof. Any options or Stock Appreciation Rights granted under the Plan may be
terminated as of a date fixed by the Board, provided that no less than fifteen
(15) days written notice of the date so fixed shall be given to each Participant
and each such Participant shall have the right during such period to exercise
all or any portion of such options or Stock Appreciation Rights. Any Stock
Appreciation Right not so exercised shall be redeemed.
(b) Continuation of the Plan Upon a Reorganization. In the event of a
Reorganization (as hereinafter defined) (i) in which the Corporation is not the
surviving or acquiring company, or in which the Corporation is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization, and (ii) with respect to which there is a reorganization
agreement which undertakes to continue the Plan and to provide for the change,
conversion or exchange of the Stock attributable to outstanding Awards for
securities of another corporation, then the Plan shall continue and the Board
shall adjust the shares under such outstanding Awards (and shall adjust the
shares remaining under the Plan which are then to be available for the grant of
additional Awards under the Plan, if the reorganization agreement makes specific
provisions therefor), in a manner not inconsistent with the provisions of the
reorganization agreement and this Plan for the adjustment, change, conversion or
exchange of such Awards.
The term "Reorganization" as used in this Section 15 shall mean any
statutory merger, statutory consolidation, sale of all or substantially all of
the assets of the Corporation, or sale, pursuant to an agreement with the
Corporation, of securities of the Corporation pursuant to which the Corporation
is or becomes a wholly-owned subsidiary of another company after the effective
date of the Reorganization.
(c) Adjustments and Determinations. Adjustments and determinations
under this Section 15 shall be made by the Board, whose decisions as to what
adjustments or determinations shall be made, and the extent thereof, shall be
final, binding, and conclusive.
<PAGE> 13
16. RETIREMENT
The Board may, in its discretion, waive the forfeiture, termination, or
lapse of an Award in the event of retirement of a Participant (each as
determined by the Board, in its discretion). Exercise of such discretion by the
Board in any individual case, however, shall not be deemed to require, or to
establish a precedent suggesting such waiver in any other case.
17. GOVERNING LAW
To the extent that federal laws do not otherwise control, this Plan and
the Awards issued hereunder shall be construed in accordance with and governed
by the law of the State of Colorado to the extent not inconsistent with Section
422 of the Code and regulations issued thereunder.
18. SAVINGS CLAUSE
This Plan is intended to comply in all aspects with applicable law and
regulation. In case any one or more of the provisions of this Plan shall be held
invalid, illegal or unenforceable in any respect under applicable law and
regulation, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and the invalid,
illegal or unenforceable provision shall be deemed null and void; however, to
the extent permissible by law, any provision which could be deemed null and void
shall first be construed, interpreted or revised retroactively to permit this
Plan to be construed in compliance with all applicable laws so as to foster the
intent of this Plan.
19. SUCCESSORS
Awards issued under the Plan should be binding upon, and inure to the
benefit of, the Corporation and its successors and assigns, and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Corporation's assets and business.
20. EFFECTIVE DATE AND TERM
The FirsTier Bancorp, Inc. 1999 Stock Incentive Plan shall be effective
this 15th day of September, 1999, subject to stockholder approval within one
year of this date. No option or restricted stock award shall be granted
hereunder after the expiration of ten years from the earlier of the date on
which the Plan was adopted by the Board of Directors or the date it was approved
by the stockholders of the Corporation.
<PAGE> 1
EXHIBIT 10.15
AGREEMENT
This Agreement (the "Agreement") is made this 17th day of September,
1999 (the "Effective Date"), by and between U.S. Bancorp, a Delaware
Corporation, and U.S. Bank National Association, a federally chartered
Commercial bank, both having a place of business at 601 Second Avenue South,
Minneapolis, Minnesota 55402 (collectively "Seller") and Firstate Bank of
Colorado, a Colorado corporation, having a place of business at 11210 Huron
Street, Denver, Colorado 80234-3010 ("Purchaser").
WHEREAS, to the best of Seller's knowledge, Seller acquired certain
rights in the mark identified on the attached Exhibit A, including any
registrations issued in connection therewith (collectively the "Mark");
WHEREAS, Purchaser desires to acquire all rights in the Mark vested in
Seller; and
WHEREAS, Seller is willing to sell such rights to Purchaser
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants contained herein, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Grant of Rights
1.1 Assignment of Mark. In consideration for the payment of the fee set forth in
Section 2 below, and subject to the limitations of subsections 1.2 and 1.3
below, Seller hereby sells, assigns and transfers unto Purchaser all rights in
the Mark vested in Seller, including that portion of the goodwill of the
business associated with the Mark. Purchaser acknowledges and agrees that Seller
is selling the Mark to Purchaser "as is," without any representations or
warranties of any kind, and to the extent that there are any defects in the
chain of title for the Mark or any registration therefor, Purchaser shall have
sole responsibility for the correction of such chain of title at its own cost
and expense; provided, however, Seller will at the reasonable request of
Purchaser execute any additional documents prepared at the expense of Purchaser
that may be necessary to transfer Seller's rights in the Mark to Purchaser. In
the event that Seller is called as a witness or subpoenaed to testify in any
litigation involving the Mark, Purchaser agrees to pay Seller's costs, expenses,
and attorneys fees associated therewith.
1.2 License-Back. Purchaser hereby grants to Seller a nonexclusive, perpetual,
royalty-free right and license to continue to use the FIRSTIER mark in
connection with the advertising and sale of money market savings services to
customers of Seller (including any of Seller's affiliates) who have purchased
such services prior to the Effective Date of this Agreement.
1.3 Restriction on Purchaser's Right to Use the Mark. Notwithstanding the
assignment of rights set forth in subsection 1.1 above, Purchaser acknowledges
and
<PAGE> 2
agrees that (1) it will have no right to use and shall not use the FIRSTIER mark
in the type style shown in the attached Exhibit A; (2) within sixty (60) days
from the Effective Date of this Agreement, Purchaser shall file an application
with the U.S. Patent and Trademark Office (the "PTO") requesting that the
registration identified in the attached Exhibit A be amended to reflect the Mark
in block letters; (3) in the event that Purchaser's application to amend the
registration identified in the attached Exhibit A is denied by the PTO,
Purchaser shall voluntarily cancel the registration and shall only refile an
application to register the Mark if the Mark is depicted in block letters; ( 4)
Purchaser shall not use the Mark in connection with any logo, design or color
scheme unless such logo, design or color scheme is clearly distinguishable from
the logo, design or color scheme previously used by Seller (including Seller's
predecessors-in-interest); and (5) Purchaser shall not use the Mark in any form
in the Omaha, Nebraska and Lincoln, Nebraska metropolitan areas for a period of
twenty-four months from the Effective Date of this Agreement.
2. Fees. In consideration for the rights transferred herein, Purchaser agrees
to pay to Seller upon Purchaser's execution of this Agreement, the sum of
twenty-five thousand dollars ($25,000 US).
3. Miscellaneous.
3.1 No Third Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the parties and their respective successors
and permitted assigns.
3.2 Entire Agreement. This Agreement (including the attached Exhibit A)
constitutes the entire agreement between the parties and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, to the extent they have related in any way to the subject
matter hereof.
3.3 Succession. This Agreement shall be binding upon and inure to the benefit of
the parties named herein and their respective successors and permitted assigns.
3.4 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
3.5 Headings. The Section and subsection headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
3.6 Notices. Any notice, request, demand, approval or other communication
required or permitted herein shall be in writing addressed to the parties at the
addresses set forth above, or other address subsequently specified by such party
in writing, and shall be deemed given on the date received if delivered
personally or sent by telefax (with transmission confirmed), on the next day if
delivered by Federal Express or similar delivery service, or on the third (3rd)
day if deposited with the U.S. Post Office with postage repaid.
<PAGE> 3
3.7 Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the parties. No
waiver by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
3.8 Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date set forth below.
U.S. BANCORP
Date 9-23-99 /s/ Lee R Mitau
--------- --------------------------
Print Lee R Mitau
--------------------
Title EVP, General Counsel
& Secretary
--------------------
STATE OF Minnesota )
--------- ) (notary stamp)
COUNTY OF Hennepin ) /s/ Lisa B Larson
--------
I, a notary public and for the county and state aforesaid, do hereby certify
that Lee R. Mitau, personally known to me to be the person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledge that he or she is EVP,G.C. & Secretary of U.S. Bancorp, that he
or she signed, sealed and delivered said instrument as his or her free and
voluntary act and deed for the uses and purpose therein set forth, and that he
or she had full authority in this regard to act on behalf of U.S. Bancorp.
<PAGE> 4
U.S. BANK NATIONAL ASSOCIATION
Date 9-23-99 /s/ Lee R Mitau
--------- -----------------------------
Print Lee R Mitau
-----------------------
Title EVP, General Counsel &
Secretary
-----------------------
STATE OF Minnesota )
--------- ) (notary stamp)
COUNTY OF Hennepin ) /s/ Lisa B Larson
--------
I, a notary public and for the county and state aforesaid, do hereby certify
that Lee R. Mitau, personally known to me to be the person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledge that he or she is EVP,G.C. & Secretary of U.S. Bank National
Association, that he or she signed, sealed and delivered said instrument as his
or her free and voluntary act and deed for the uses and purpose therein set
forth, and that he or she had full authority in this regard to act on behalf of
U.S. National Association.
FIRSTATE BANK OF COLORADO
Date Sept 22, 1999 /s/ T.D. Wiens
------------- -----------------------------
Print T.D. Wiens
-----------------------
Title Pres/CEO
-----------------------
STATE OF Colorado )
-------- )
COUNTY OF Adams )
-------
I, a notary public and for the county and state aforesaid, do hereby certify
that Timothy D. Wiens, personally known to me to be the person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledge that he or she is CEO of Firstate Bank of Colorado, that he or
she signed, sealed and delivered said instrument as his or her free and
voluntary act and deed for the uses and purpose therein set forth, and that he
or she had full authority in this regard to act on behalf of Firstate Bank of
Colorado.
(notary seal) /s/ Brenda D. Mathews
My Commission Expires Aug. 10, 2002
<PAGE> 5
EXHIBIT A
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Mark Registration No. Registration Date Services
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
FirsTier 1,453,739 August 18,1987 Banking Services
- -------------------------------------------------------------------------------
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE 10-Q
DATED OCTOBER 30, 1999 FOR THE PERIOD ENDED SEPTEMBER 30, 1999 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL INFORMATION.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 26,975
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 2,500
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 39,361
<INVESTMENTS-CARRYING> 6,154
<INVESTMENTS-MARKET> 6,200
<LOANS> 518,791
<ALLOWANCE> 4,364
<TOTAL-ASSETS> 608,144
<DEPOSITS> 516,466
<SHORT-TERM> 20,268
<LIABILITIES-OTHER> 3,739
<LONG-TERM> 20,593
23,000
0
<COMMON> 1,520
<OTHER-SE> 22,808
<TOTAL-LIABILITIES-AND-EQUITY> 608,144
<INTEREST-LOAN> 29,820
<INTEREST-INVEST> 1,766
<INTEREST-OTHER> 546
<INTEREST-TOTAL> 32,132
<INTEREST-DEPOSIT> 14,265
<INTEREST-EXPENSE> 16,384
<INTEREST-INCOME-NET> 15,748
<LOAN-LOSSES> 2,174
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 11,052
<INCOME-PRETAX> 5,275
<INCOME-PRE-EXTRAORDINARY> 3,450
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,450
<EPS-BASIC> 0.46
<EPS-DILUTED> 0.46
<YIELD-ACTUAL> 4.62
<LOANS-NON> 705
<LOANS-PAST> 621
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 2,187
<CHARGE-OFFS> 34
<RECOVERIES> 37
<ALLOWANCE-CLOSE> 4,364
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 4,364
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
RESPECTIVE 10-QS DATED MAY 13, 1999 AND AUGUST 12, 1999. IT HAS BEEN RESTATED TO
REFLECT THE SEPTEMBER 1999 REORGANIZATION AND RECAPITALIZATION OF THE COMPANY.
</LEGEND>
<RESTATED>
<S> <C> <C> <C>
<PERIOD-TYPE> 6-MOS 3-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 JAN-01-1999 JAN-01-1998
<PERIOD-END> JUN-30-1999 MAR-31-1999 DEC-31-1998
<CASH> 14,496 14,569 13,892
<INT-BEARING-DEPOSITS> 0 0 3
<FED-FUNDS-SOLD> 2,500 16,040 13,270
<TRADING-ASSETS> 0 0 0
<INVESTMENTS-HELD-FOR-SALE> 46,604 34,854 27,082
<INVESTMENTS-CARRYING> 6,259 6,689 7,146
<INVESTMENTS-MARKET> 6,336 6,805 7,250
<LOANS> 417,416 346,063 295,182
<ALLOWANCE> 3,621 3,095 2,187
<TOTAL-ASSETS> 499,383 429,938 367,207
<DEPOSITS> 428,512 366,951 319,480
<SHORT-TERM> 9,563 5,530 5,080
<LIABILITIES-OTHER> 3,154 3,796 3,818
<LONG-TERM> 12,193 8,650 17,440
23,000 23,000 0
0 0 0
<COMMON> 1,520 1,520 837
<OTHER-SE> 21,441 20,491 19,869
<TOTAL-LIABILITIES-AND-EQUITY> 499,383 429,938 367,207
<INTEREST-LOAN> 17,642 7,975 24,160
<INTEREST-INVEST> 1,096 472 1,724
<INTEREST-OTHER> 414 180 870
<INTEREST-TOTAL> 19,152 8,627 26,754
<INTEREST-DEPOSIT> 8,495 3,825 11,884
<INTEREST-EXPENSE> 9,773 4,340 12,754
<INTEREST-INCOME-NET> 9,379 4,287 14,000
<LOAN-LOSSES> 1,429 915 1,090
<SECURITIES-GAINS> 0 0 (4)
<EXPENSE-OTHER> 6,939 3,189 10,659
<INCOME-PRETAX> 2,910 1,043 5,091
<INCOME-PRE-EXTRAORDINARY> 1,953 712 3,375
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 1,953 712 3,375
<EPS-BASIC> 0.26 0.10 0.46
<EPS-DILUTED> 0.26 0.10 0.46
<YIELD-ACTUAL> 4.68 4.60 5.23
<LOANS-NON> 352 394 635
<LOANS-PAST> 334 525 288
<LOANS-TROUBLED> 0 0 0
<LOANS-PROBLEM> 0 0 0
<ALLOWANCE-OPEN> 2,187 2,187 1,321
<CHARGE-OFFS> 31 20 398
<RECOVERIES> 36 13 174
<ALLOWANCE-CLOSE> 3,621 3,095 2,187
<ALLOWANCE-DOMESTIC> 0 0 0
<ALLOWANCE-FOREIGN> 0 0 0
<ALLOWANCE-UNALLOCATED> 3,621 3,095 2,187
</TABLE>
