EXHIBIT 10.52
ZIONS
BANCORPORATION
CHANGE IN CONTROL
AGREEMENT
SENIOR EXECUTIVES
(3X)
May 23, 2008
Dallas Haun
750 E. Warm Springs Road, 4th F1
Las Vegas, NV 89119
Dear Dallas:
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.
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2. Change in Control. 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 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
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(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.
(b) Disability. Your employment may
be terminated for “Disability,” as that term is defined
in ¶ 3(a) of the July 20, 2007 Employment Agreement
entered into between you and the Company (“Employment
Agreement”).
(c) Cause. Your employment may be
terminated for “Cause,” as that term is defined in
defined in ¶ 3(b) of the Employment Agreement.
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(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;
(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
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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 . 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
be, provided that such period or termination occurs during the term
of this Agreement and within the two (2) year period
immediately following the date of such Change in Control. The
benefits to which you are entitled, subject to the terms and
conditions of this Agreement, are:
(a) During any period during which
you fail to perform your full-time duties with the Company as a
result of incapacity due to physical or mental illness, you shall
continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all compensation
payable to you under the Company’s disability plan or program
or other similar plan during such period, until this Agreement is
terminated pursuant to Section 4(b) hereof. Thereafter, or in
the event your employment is terminated by reason of your death,
your benefits shall be determined under the Company’s
retirement, insurance and other compensation programs then in
effect in accordance with the terms of such programs.
(b) If your employment shall be
terminated (i) by the Company for Cause or (ii) by you
other than for Good Reason, the Company shall pay you (1) your
full base salary, when due, through the Date of Termination at the
rate in effect
