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EXHIBIT 10.48
[FORM OF
AGREEMENT]
ZIONS
BANCORPORATION
CHANGE IN CONTROL
AGREEMENT
SENIOR
EXECUTIVES
The company is a party to Change in
Control Agreements with certain executive officers in the form
attached hereto.
[FORM OF
AGREEMENT]
ZIONS
BANCORPORATION
CHANGE IN CONTROL
AGREEMENT
SENIOR
EXECUTIVES
(3X)
[Date]
[Executive]
[Address]
Dear [Executive]:
Zions Bancorporation (the
“Company”) considers it essential to the best interests
of its shareholders to foster the continuous employment of key
management personnel. In connection with this, the Company’s
Board of Directors (the “Board”) recognizes that, as is
the case with many publicly held corporations, the possibility of a
change in control of the Company may exist and that the uncertainty
and questions that it may raise among management could result in
the departure or distraction of management personnel to the
detriment of the Company and its shareholders.
The Board has decided to
reinforce and encourage the continued attention and dedication of
members of the Company’s management, including yourself, to
their assigned duties without the distraction arising from the
possibility of a change in control of the Company.
In order to induce you to
remain in the employ of the Company or any of its affiliates
(collectively, the “Company”), the Company hereby
agrees that after this letter agreement (this
“Agreement”) has been fully executed, you shall receive
the severance benefits set forth in Section 5 of this
Agreement in the event your employment with the Company
is terminated under the circumstances described in
Section 4 of this Agreement subsequent to a Change in Control
(as defined in Section 2).
1. Term of Agreement .
This Agreement shall commence on the date hereof and shall continue
in effect through December 31, 2009; provided, however
, that commencing on March 1, 2009 and on each March 1
thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than
March 1 of that preceding year, the Company shall have given
notice that it does not wish to extend this Agreement; provided,
further, that if a Change in Control (as defined in
Section 2), occurs during the original or any extended term of
this Agreement, the term of this Agreement shall continue in effect
for a period of not less than thirty-six (36) months beyond
the month in which such Change in Control occurred.
2. Change in Control
.
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No benefits shall be payable
or provided under Section 3, 4 or 5 of this Agreement unless
there has been a Change in Control. For purposes of this Agreement,
a Change in Control shall not be deemed to have occurred if the
Board consisting of a majority of Continuing Directors as defined
in Section (b) determines that, in their reasonable judgment,
a change in control has not occurred. Without such a determination,
a change in control will be deemed to have occurred if:
(a) any Person (as defined in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) is or becomes the
Beneficial Owner (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of
the Company’s then outstanding securities (“Outstanding
Company Voting Securities”); provided, however, that for
purposes of this subsection (a), the following shall not constitute
a Change in Control: (i) any acquisition by the Company or any
corporation controlled by the Company, (ii) any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company, or (iii) any acquisition by a Person of 20% of the
Outstanding Company Voting Securities as a result of an acquisition
of common stock of the Company by the Company which, by reducing
the number of shares of common stock of the Company outstanding,
increases the proportionate number of shares beneficially owned by
such Person to 20% or more of the Outstanding Company Voting
Securities; provided, however, that if a Person shall become the
beneficial owner of 20% or more of the Outstanding Company Voting
Securities by reason of a share acquisition by the Company as
described above and shall, after such share acquisition by the
Company, become the beneficial owner of any additional shares of
common stock of the Company, then such acquisition shall constitute
a Change in Control;
(b) during any period of two
consecutive years (not including any period prior to the
execution of this Agreement), individuals who at the beginning of
such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement
with Company to effect a transaction described in Sections 2(b),
(d), (e) or (f)) whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote
of at least a majority of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved
(hereinafter referred to as “Continuing Directors”),
cease for any reason to constitute at least a majority
thereof;
(c) the consummation by the
Company of a merger or consolidation of Company with any other
corporation (or other entity), other than a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) 50% or more of the combined
voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of
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the Company (or similar
transaction) in which no Person acquires more than 20% of the
Outstanding Company Voting Securities shall not constitute a Change
in Control;
(d) the stockholders of the
Company approve a plan of complete liquidation of the Company;
or
(e) the consummation of an
agreement (or agreements) providing for the sale or disposition by
the Company of all or substantially all of the Company’s
assets other than a sale or disposition which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent 50% or more of the combined voting
power of the acquiring entity outstanding immediately after such
sale or disposition.
3. Accelerated Vesting
Upon a Change in Control .
(a) All outstanding options,
if any, granted to you by the Board (“Options”) under
any of the Company’s stock option plans, incentive plans, or
other similar plans (or options substituted therefore covering the
stock of a successor corporation) shall become fully vested and
exercisable immediately prior to the Change in Control as to all
shares of stock covered thereby, and the restricted period with
respect to any restricted stock or any other equity award granted
to you thereunder shall lapse and such shares shall be distributed
to you immediately prior to the Change in Control.
(b) All unpaid Senior
Management Value Sharing Awards will be payable at the higher of
their target value as established by the Executive Compensation
Committee of the Board (the “Committee”) or their value
calculated under the terms of the Value Sharing Plan based on the
average annual growth in Earnings per Share and the average
Tangible Return on Equity from the inception of each Plan Period
through the fiscal quarter ending prior to the effective date of
the Change of Control. Any such payments will be pro-rated based on
multiplying them times a fraction, the numerator of which is the
number of quarters completed in the performance cycle and the
denominator of which is the original number of quarters in the
performance cycle called for in the plan. The payments described in
this Section 3(b) shall be paid in a single lump sum within 30
days following the Change in Control (with the actual payment date
during such 30-day period to be determined in the Company’s
sole discretion).
4. Termination of
Employment Following a Change in Control .
(a) General . During
the term of this Agreement, if any of the events described in
Section 2 constituting a Change in Control shall have
occurred, you shall be entitled to the benefits provided in
Section 5(c) upon the subsequent termination of your
employment, provided that such termination occurs during the term
of this Agreement and within the two (2) year period
immediately following the date of such Change in Control, unless
such termination is (i) because of your death or Disability
(as defined in Section 4(b)), (ii) by the Company for
Cause (as defined in Section 4(c)), or (iii) by you other
than for Good Reason (as defined in Section 4(d). In the event
that you are entitled to such benefits, such benefits shall be paid
notwithstanding the subsequent expiration of the term of this
Agreement.
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(b) Disability . If,
as a result of your incapacity due to physical or mental illness,
you shall have been absent from the full-time performance of your
duties with the Company for six (6) consecutive months, and
within thirty (30) days after written notice of termination is
given you shall not have returned to the full-time performance of
your duties, your employment may be terminated for
“Disability.”
(c) Cause .
Termination by the Company of your employment for
“Cause” shall mean termination (i) upon your
willful and continued failure to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or any such actual or
anticipated failure after your issuance of a Notice of Termination
(as defined in Section 4(e) for Good Reason), after a written
demand for substantial performance is delivered to you by the
Board, which demand specifically identifies the manner in which the
Board believes that you have not substantially performed your
duties, (ii) upon your willful and continued failure to
substantially follow and comply with the specific and lawful
directives of the Board, as reasonably determined by the Board
(other than any such failure resulting from your incapacity due to
physical or mental illness or any such actual or anticipated
failure after your issuance of a Notice of Termination for Good
Reason), after a written demand for substantial performance is
delivered to you by the Board, which demand specifically identifies
the manner in which the Board believes that you have not
substantially performed your duties, (iii) upon your willful
commission of an act of fraud or dishonesty resulting in material
economic or financial injury to the Company, or (iv) upon your
willful engagement in illegal conduct or gross misconduct, in each
case which is materially and demonstrably injurious to the
Company
(d) Good Reason . You
shall be entitled to terminate your employment for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean,
without your express written consent, the occurrence after a Change
in Control of any of the following circumstances unless (except in
the case of Sections 4(d)(iv)), such circumstances are fully
corrected (provided such circumstances are capable of correction)
prior to the Date of Termination (as defined in Section 4(f))
specified in the Notice of Termination given in respect
thereof:
(i) the assignment to you of
any duties materially inconsistent with the position in the Company
that you held immediately prior to the Change in Control, a
significant adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control, or any other
action by the Company that results in a material diminution in your
position, authority, duties or responsibilities;
(ii) the Company’s
reduction by more than 10% of your annual total compensation as in
effect on the date hereof or as the same may be increased from time
to time;
(iii) the relocation of the
Company’s offices at which you are principally employed
immediately prior to the date of the Change in Control
(your “Principal Location”) which results in the
one-way commuting distance for you increasing by more than thirty
(30) miles from such location, or the Company’s
requiring you, without your written consent, to be based anywhere
other than your Principal Location, except
for required travel on the Company’s business to an
extent substantially consistent with your present
business travel obligations;
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(iv) the Company’s
failure to pay to you any portion of your current compensation or
to pay to you any portion of an installment of deferred
compensation under any deferred compensation program of the Company
within thirty (30) days after the date such compensation is
due;
(v) the Company’s
failure to continue in effect any material compensation or benefit
plan in which you participate immediately prior to the Change in
Control, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such
plan, or the Company’s failure to continue your participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of your participation relative to other
participants, as existed at the time of the Change in Control;
or
(vi) any purported
termination of your employment that is not effected pursuant to a
Notice of Termination satisfying the requirements of
Section 4(e) hereof (and, if applicable, the requirements
of Section 4(c) hereof), which purported termination shall not
be effective for purposes of this Agreement.
Notwithstanding the
foregoing, if you do not provide the Company with written notice of
the occurrence of an act or circumstance of a type described above
in this Section 4 within sixty (60) days of your having
knowledge thereof occurrence of a type described above in this
Section 4, such act or occurrence shall no longer constitute a
basis for an event of termination for “Good Reason”.
Your right to terminate your employment pursuant to this
Section 4(d) shall not be affected by your incapacity due to
physical or mental illness. Your continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
(e) Notice of
Termination . Any purported termination of your employment by
the Company or by you (other than termination due to death which
shall terminate your employment automatically) shall be
communicated by written Notice of Termination to the other party
hereto in accordance with Section 7. “Notice of
Termination” shall mean a notice that shall indicate the
specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of your employment under
the provision so indicated.
(f) Date of Termination,
Etc . “Date of Termination” shall mean (a) if
your employment is terminated due to your death, the date of your
death; (b) if your employment is terminated
for Disability, thirty (30) days after Notice of
Termination is given (provided that you shall not have returned to
the full-time performance of your duties during such thirty
(30)-day period), and (c) if your employment is terminated
pursuant to Section 4(c), Section 4(d) or
Section 4(e) or for any other reason (other than death or
Disability), the date specified in the Notice of Termination
(which, in the case of a termination for Cause shall not be less
than thirty (30) days from the date such Notice of Termination
is given, and in the case of a termination for Good Reason shall
not be less than fifteen (15) nor more than sixty
(60) days from the date such Notice of Termination is
given).
5. Compensation Upon
Termination or During Disability Following A Change in Control
.
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Following a Change in Control
during the term of this Agreement, you shall be entitled to the
benefits described below during a period of disability, or upon
termination of your employment, as the case may
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