EXHIBIT 10.1
AGREEMENT OF MERGER BETWEEN ZIONS BANCORPORATION AND MINNEQUA BANCORP, INC.
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of July 10, 2001,
between ZIONS BANCORPORATION ("Zions Bancorp"), a corporation organized under
the laws of the State of Utah, and MINNEQUA BANCORP, INC. (the "Company"), a
corporation organized under the laws of the State of Colorado. Zions Bancorp and
the Company are hereinafter sometimes individually called a "Constituent
Corporation" and collectively called the "Constituent Corporations."
RECITALS
Zions Bancorp is a corporation duly organized, validly existing and in
good standing under the laws of the State of Utah. As of June 30, 2001, the
authorized capital stock of Zions Bancorp consisted of 3,000,000 shares of
Preferred Stock, without par value, of which none have been issued, and
350,000,000 shares of Common Stock, without par value, of which 92,328,261
shares were issued and outstanding.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado. As of June 30, 2001, the
authorized capital stock of the Company consisted of 100,000 shares of
non-voting preferred stock, $100.00 par value, of which none have been issued,
and 100,000 shares of Company Common Stock, no par value (the "Company Common
Stock"), of which 11,938 shares were issued and outstanding.
Zions Bancorp and the Company have entered into an Agreement and Plan of
Reorganization, dated July 10, 2001 (the "Plan of Reorganization"), setting
forth certain representations, warranties, and agreements in connection with the
transactions therein and herein contemplated, which contemplates the merger of
the Company with and into Zions Bancorp (the "Merger") in accordance with this
Agreement of Merger (the "Agreement").
The Boards of Directors of each of Zions Bancorp and the Company deem
the Merger advisable and in the best interests of each corporation and its
stockholders. The Boards of Directors of each of Zions Bancorp and the Company,
by resolutions duly adopted, have approved the Plan of Reorganization and this
Agreement and directed that this Agreement, and authorization for the
transactions contemplated hereby, be submitted to stockholders of the Company
respectively for approval. Pursuant to the Utah Business Corporation Act, action
by the stockholders of Zions Bancorp is not required.
At the Effective Date (as defined in section 1.1 below) shares of
Company Common Stock shall be converted into the right to receive a combination
of shares of the common stock of Zions Bancorp, no par value (the "Zions Bancorp
Stock"), and cash as provided herein.
In consideration of the premises and the mutual covenants and agreements
herein contained and subject to the terms and conditions of the Agreement, the
parties hereto hereby covenant and agree as follows:
ARTICLE I
1.1. MERGER OF THE COMPANY INTO ZIONS BANCORP. The Company shall be
merged with and into Zions Bancorp on the date and at the time to be specified
in the Articles of Merger to be filed with the Secretary of State of the State
of Utah pursuant to section 16-10a-1105 of the Utah Business Corporation Act and
the Secretary of State of the State of Colorado pursuant to section ▇-▇▇▇-▇▇▇ of
the Colorado Business Corporation Act (such date and time being referred to
herein as the "Effective Date").
1.2. EFFECT OF THE MERGER. At the Effective Date:
(a) The Company and Zions Bancorp shall be a single corporation,
which shall be Zions Bancorp. Zions Bancorp is hereby designated as the
surviving corporation in the Merger and is hereinafter sometimes called the
"Surviving Corporation."
(b) The separate existence of the Company shall cease.
(c) The Surviving Corporation shall have all the rights,
privileges, immunities, and powers and shall assume and be subject to all the
duties and liabilities of a corporation organized under the Utah Business
Corporation Act.
(d) The Surviving Corporation shall thereupon and thereafter
possess all of the rights, privileges, immunities, and franchises, of a public
as well as of a private nature, of each of the Constituent Corporations; and all
property, real, personal and mixed, and all debts due on whatever account,
including subscriptions to shares and all other choses in action, and all and
every other interest of and belonging to or due to each of the Constituent
Corporations shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and the title to any real
estate, or any interest therein, vested in either of the Constituent
Corporations shall not revert or be in any way impaired by reason of the Merger.
(e) The Surviving Corporation shall thenceforth be responsible and
liable for all the liabilities and obligations of each of the Constituent
Corporations; and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations may be prosecuted as if the
Merger had not taken place, or the Surviving Corporation may be substituted in
its place. The Surviving Corporation expressly assumes and agrees to perform all
of the Company's liabilities and obligations. Neither the rights of creditors
nor any liens upon the property of either Constituent Corporation shall be
impaired by the Merger.
(f) The Articles of Incorporation of Zions Bancorp as they exist
immediately prior to the Effective Date shall be the Articles of Incorporation
of the Surviving Corporation until later amended pursuant to Utah law.
(g) The By-Laws of Zions Bancorp as they exist immediately prior to
the Effective Date shall be the By-Laws of the Surviving Corporation until later
amended pursuant to Utah law.
(h) At the Effective Date and until surrendered for exchange and
payment, each outstanding stock certificate which, prior to the Effective Date,
represented shares of Company Common Stock shall, without further action, cease
to be an issued and existing share and shall be converted into a right to
receive from Zions Bancorp, and shall for all purposes represent the right to
receive, upon surrender of the certificate formerly representing such shares,
the prorata consideration specified in Article III; provided that, with respect
to any matters relating to stock certificates representing Company Common Stock,
Zions Bancorp may rely conclusively upon the record of stockholders maintained
by the Company containing the names and addresses of the holders of record of
the Company's Common Stock at the Effective Date.
1.3. ACTS TO CARRY OUT THIS MERGER PLAN.
(a) The Company and its proper officers and directors shall and
will do all such acts and things as may be necessary or proper to vest, perfect,
or confirm title to such property or rights in Zions Bancorp and otherwise to
carry out the purposes of this Agreement.
(b) If, at any time after the Effective Date, Zions Bancorp shall
consider or be advised that any further assignments or assurances in law or any
other acts are necessary or desirable to (i) vest, perfect, or confirm, of
record or otherwise, in Zions Bancorp its right, title, or interest in or under
any of the rights, properties, or assets of the Company acquired or to be
acquired by Zions Bancorp as a result of, or in connection with, the Merger, or
(ii) otherwise carry out the purposes of this Agreement, the Company and its
proper officers and directors shall be deemed to have granted to Zions Bancorp
an irrevocable power of attorney to execute and deliver all such proper deeds,
assignments, and assurances in law and to do all acts necessary or proper to
vest, perfect, or confirm title to and possession of such rights, properties, or
assets in Zions Bancorp and otherwise to carry out the purposes of this
Agreement; and the proper officers and directors of Zions Bancorp are fully
authorized in the name of the Company or otherwise to take any and all such
action.
ARTICLE II
2.1. CAPITALIZATION. The authorized shares of capital stock of
Zions Bancorp as of the Effective Date shall be 3,000,000 shares of Preferred
Stock, without par value, and 350,000,000 shares of Common Stock, without par
value.
ARTICLE III
3.1. MANNER OF CONVERTING SHARES.
(a) Subject to the terms, conditions, and limitations set forth
herein, upon surrender of his or her certificate or certificates, each holder of
shares of Company Common Stock shall be entitled to receive, in exchange for
each share of Company Common Stock held of record by such stockholder as of the
Effective Date, a combination of Zions Bancorp Stock and cash. The value of such
Zions Bancorp Stock and cash received for each such share of Company Common
Stock will be calculated by dividing the Consideration by the total number of
shares of Company Common Stock that shall be issued and outstanding at the
Effective Date. Subject to section 3.2 of this Agreement, 55 percent of the
value of such Zions Bancorp Stock and cash will comprise Zions Bancorp Stock,
and 45 percent of the value of such Zions Bancorp Stock and cash will comprise
cash. For purposes of this section 3.1, the value of a share of Zions Bancorp
Stock shall be the Average Closing Price.
(b) As used in this Agreement:
"Average Closing Price" means the average of the mean of the closing bid
and asked prices of Zions Bancorp Stock in the over-the-counter market as such
prices are reported on the automated quotation system of the National
Association of Securities Dealers, Inc., or in the absence thereof by such other
source upon which Zions Bancorp and the Company shall agree, as of the 4:00 p.m.
(New York time) "benchmark" close of trading for each of the fifteen trading
days ending on the second trading day before the Effective Date.
"Consideration" means (a) $45,000,000, minus (b) the amount by which the
Transaction Expenses exceed $690,000, plus (c) any identifiable tax benefit
associated with the portion of the Transaction Expenses that exceed $690,000, as
determined by Ernst & Young LLP.
"Transaction Expenses" means all pre-tax expenses incurred or otherwise
identified as to be incurred on or after April 1, 2001 with respect to (a) the
engagement of The ▇▇▇▇▇▇▇ Company to represent the Company or the Bank to render
financial advisory and investment banking services to the Company or the Bank,
(b) the engagement of Banner, ▇▇▇▇▇▇, Kwitek & ▇▇▇▇▇▇ P.C. or any of its members
or shareholders with respect to the transactions contemplated by the Plan of
Reorganization, (c) the engagement of McPherson, Breyfogle, Daveline & ▇▇▇▇▇▇▇▇,
P.C. or any of this members or shareholders with respect to the transactions
contemplated by the Plan of Reorganization, and (d) the termination of The
Minnequa Bank of Pueblo Pension Plan, other than the charge to the earnings of
the Company or the Bank of the balance of the prepaid pension cost asset related
to The Minnequa Bank of Pueblo Pension Plan, net of the reversal of the related
deferred income tax liability.
3.2. NO FRACTIONAL SHARES. Zions Bancorp will not issue fractional
shares of its stock. In lieu of fractional shares of Zions Bancorp Stock, if
any, each shareholder of the Company who is entitled to a fractional share of
Zions Bancorp Stock shall receive an amount of cash equal to the product of such
fraction times the Average Closing Price. Such fractional share interest shall
not include the right to vote or to receive dividends or any interest thereon.
3.3. DIVIDENDS; INTEREST. No shareholder of the Company entitled to
receive Zions Bancorp Stock in the Holding Company Merger will be entitled to
receive dividends on his or her Zions Bancorp Stock until he or she exchanges
his or her certificates representing Company Common Stock for Zions Bancorp
Stock. Any dividends declared on Zions Bancorp Stock to holders of record on or
after the Effective Date shall, with respect to stock to be delivered pursuant
to this Agreement to such shareholders of the Company who are entitled to
exchange and have not exchanged their certificates representing Company Common
Stock for Zions Bancorp Stock, be paid to the Exchange Agent (as designated
herein) and, upon receipt from such a former shareholder of the Company of
certificates representing shares of Company Common Stock, the Exchange Agent
shall forward to such former shareholder of the Company (a) certificates
representing his or her shares of Zions Bancorp Stock, (b) dividends declared
thereon subsequent to the Effective Date (without interest), (c) the cash value
of any fractional shares determined in accordance with section 3.2 of this
Agreement, and (d) the cash portion of the Consideration to which such
shareholder is entitled.
3.4. DESIGNATION OF EXCHANGE AGENT.
(a) The parties of this Agreement hereby designate Zions First
National Bank, a national banking association with its head office located in
Salt Lake City, Utah ("Zions Bank") as Exchange Agent to effect the exchanges
contemplated hereby.
(b) Zions Bancorp will, on the Effective Date or as shortly
thereafter as is administratively practicable, issue and deliver to Zions Bank
the share certificates representing shares of Zions Bancorp Stock and the cash
to be paid to holders of Company Common Stock in accordance with this Agreement.
(c) If any share certificate representing shares of Zions Bancorp
Stock is to be issued in a name other than that in which the corresponding
certificate which, immediately prior to the effectiveness of the Holding Company
Merger, had represented shares of Company Common Stock (an "Old Certificate")
surrendered for exchange was issued, the Old Certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and the Person
requesting such exchange shall pay to Zions Bank any transfer or other taxes
required by reason of the issuance of the share certificate representing shares
of Zions Bancorp Stock in any name other than that of the registered holder of
the Old Certificate surrendered, or establish to the satisfaction of Zions Bank
that such tax has been paid or is not payable.
(d) At any time after the second anniversary of the Effective Date,
Zions Bancorp may sell, for the accounts of any or all of the holders of record
of Old Certificates and with or without notice to such holders, any or all
shares of Zions Bancorp Stock which holders of Old Certificates are entitled to
receive under this Agreement to the extent that the Old Certificates to which
such shares of Zions Bancorp Stock relate have not been surrendered for exchange
in accordance with this Agreement on or before the second anniversary of the
Effective Date ("Unclaimed Shares"). Any such sale may be made by public or
private sale or sale at any broker's board or on any securities exchange in such
manner and at such times as Zions Bancorp shall determine. If, in the opinion of
counsel for Zions Bancorp, it is necessary or desirable, any Unclaimed Shares
may be registered for sale under the Securities Act and applicable state laws.
Zions Bancorp shall not be obligated to make any sale of Unclaimed Shares if it
shall determine not to do so, even if notice of sale of the Unclaimed Shares has
been given. The net proceeds of any such sale of Unclaimed Shares shall be held
for holders of the unsurrendered Old Certificates whose Unclaimed Shares have
been sold, to be paid to them upon surrender of the Old Certificates. From and
after any such sale, the sole right of the holders of the unsurrendered Old
Certificates whose Unclaimed Shares have been sold shall be the right to collect
the net sale proceeds held by Zions Bancorp for their respective accounts, and
such holders shall not be entitled to receive any interest on such net sale
proceeds held by Zions Bancorp.
(e) If any Old Certificates are not surrendered prior to the date
on which such certificates or the proceeds of the sale of the Unclaimed Shares,
as the case may be, would otherwise escheat to or become the property of any
governmental unit or agency, the unclaimed items shall, to the extent permitted
by abandoned property and any other applicable law, become the property of Zions
Bancorp (and to the extent not in its possession shall be paid over to it), free
and clear of all claims or interest of any person previously entitled to such
claims. Notwithstanding the foregoing, neither Zions Bancorp nor its agents or
any other Person shall be liable to any former holder of Company Common Stock
for any property delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
3.5. NOTICE OF EXCHANGE. Promptly after the Effective Date, Zions Bank
shall mail to each holder of one or more certificates formerly representing
Company Common Stock except to such holders as shall have waived the notice
required by this section 3.5, a notice specifying the Effective Date and
notifying such holder to surrender his or her certificate or certificates to
Zions Bank for exchange. Such notice shall be mailed to holders by regular mail
at their addresses on the records of the Company.
ARTICLE IV
4.1. COUNTERPARTS. This Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
parties hereto. It shall not be necessary in making proof of this Agreement or
any counterpart of this Agreement to produce or account for the other
counterpart.
4.2. SECTION HEADINGS. The section and subsection headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions of this Agreement. Any reference to a
"person" herein shall include an individual, firm, corporation, partnership,
trust, government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
4.3. CHOICE OF LAW AND VENUE. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Colorado,
without giving effect to the principles of conflict of law thereof. The parties
hereby designate Denver County, Colorado to be the proper jurisdiction and venue
for any suit or action arising out of this Agreement. Each of the parties
consents to personal jurisdiction in such venue for such a proceeding and agrees
that it may be served with process in any action with respect to this Agreement
or the transactions contemplated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
State of Colorado. Each of the parties irrevocably and unconditionally waives
and agrees, to the fullest extent permitted by law, not to plead any objection
that it may now or hereafter have to the laying of venue or the convenience of
the forum of any action or claim with respect to this Agreement or the
transactions contemplated thereby brought in the courts aforesaid.
4.4. BINDING AGREEMENT. This Agreement shall be binding upon the parties
and their respective successors and assigns.
4.5. AMENDMENT. Anything herein or elsewhere to the contrary
notwithstanding, to the extent permitted by law, this Agreement may be amended,
supplemented, or interpreted at any time prior to the Effective Date by written
instrument duly authorized and executed by each of the parties hereto, provided
that this Agreement may not be amended after the action by shareholders of the
Company in any respect that would prejudice the economic interests of such
Company shareholders, or any of them, except as specifically provided herein or
by like action of such shareholders.
4.6. TERMINATION. This Agreement shall terminate and be abandoned upon
(i) termination of the Plan of Reorganization or (ii) the mutual consent of
Zions Bancorp and the Company at any time prior to the Effective Date, and there
shall be no liability on the part of either of the parties hereto (or any of
their respective officers or directors) except to the extent provided in the
Plan of Reorganization.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ZIONS BANCORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
MINNEQUA BANCORP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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President