|
EXHIBIT 10.38
AMENDED AND RESTATED ZIONS
BANCORPORATION
1996 NON-EMPLOYEE
DIRECTORS
STOCK OPTION
PLAN
SECTION 1
P URPOSE
OF THE P
LAN
The Zions Bancorporation
Stock Option Plan for Non-Employee Directors (the
“Plan” ) is intended to provide a method whereby
the non-employee voting directors (the “Non-Employee
Directors” ) of Zions Bancorporation (the
“Company” ), who are responsible for reviewing
and monitoring the performance of the Company and the performance
of the Company’s officers, may be encouraged to acquire a
stock ownership in the Company, thereby promoting the interests of
the Company and all its stockholders. Accordingly, the Company,
during the term of the Plan, will grant Options (as defined in
Section 3.2) to the Non-Employee Directors to purchase shares
of the Company’s common stock, subject to the conditions
hereinafter provided.
SECTION 2
A
DMINISTRATION OF THE P
LAN
2.1. The Plan shall be
administered by the Pension and Benefits Committee (the
“Committee” ) which consists of officers of the
Company. The Committee shall keep records of action taken at its
meetings.
2.2. The Committee shall
interpret the Plan and prescribe such rules, regulations and
procedures in connection with the operation of the Plan as it shall
deem to be necessary and advisable for the administration of the
Plan consistent with the purposes and terms of the Plan. All
questions of interpretation and application of the Plan, or as to
Options granted under the Plan, shall be subject to the
determination of the Committee, which shall be final and
binding.
2.3. Notwithstanding the above,
the selection of the Non-Employee Directors to whom Options are to
be granted, the timing of such grants, the number of shares subject
to any Option, the exercise price of any Option, the periods during
which any Option may be exercised and the term of any Option shall
be as hereinafter provided, and the Committee shall have no
discretion as to such matters.
2.4. Notwithstanding anything
contained herein to the contrary, no member of the Committee shall
be eligible to receive Options granted under the Plan.
SECTION 3
E
LIGIBILITY OF G
RANTEES
3.1. Options shall be granted
only to voting Non-Employee Directors of the Company who are not
currently serving as full-time or part-time employees of the
Company or any of its affiliates.
3.2. Nothing in the Plan, in any
option granted under the Plan ( “Option” ), or
in any Option Agreement (as defined in Section 6.5) shall
confer any right to any person to continue as a Non-Employee
Director of the Company or interfere in any way with the right of
the stockholders of the Company or the Company’s Board of
Directors (the “Board” ) to elect and remove any
Non-Employee Director at any time, with or without
cause.
SECTION 4
S TOCK A
VAILABLE U NDER THE P
LAN
4.1. The stock to be issued upon
exercise of Options granted under the Plan shall be the
Company’s common stock, without par value ( “Common
Stock” ), that shall be made available either from
authorized but unissued Common Stock or from Common Stock
reacquired by the Company, including shares purchased in the open
market. The aggregate number of shares of Common Stock available
and reserved for the grant of Options pursuant to the Plan shall
not exceed One Hundred Thousand (100,000) shares. The
limitations established by the preceding sentence shall be subject
to adjustment as provided in Section 11 of the
Plan.
4.2. If any Option granted under
the Plan is cancelled by mutual consent or terminates or expires
for any reason without having been exercised in full, the shares of
Common Stock allocable to the unexercised portion of such Option
may again be available for grant under the Plan.
SECTION 5
T YPE
OF O PTION
Only “nonstatutory
stock options” shall be granted under the terms of the Plan.
For purposes of the Plan, the term “nonstatutory stock
options” shall mean an option which does not qualify under
Section 422 or 423 of the Internal Revenue Code of 1986, as
amended.
-2-
SECTION 6
G RANT
OF O PTION
6.1. Each Non-Employee Director
shall receive a grant of Options pursuant to this Plan on the first
business day after the date such Plan is approved by the
Company’s stockholders. Thereafter, each Non-Employee
Director shall automatically be granted Options each year on the
first business day following the day of the Annual Meeting of
Stockholders of the Company as provided in
Section 6.2.
6.2. Each Non-Employee Director
shall receive, on an annual basis, an Option to purchase One
Thousand (1,000) shares of the Company’s Common Stock,
subject to adjustment only as provided in Section 11 of the
Plan. If the number of shares then remaining available for the
grant of Options under the Plan is not sufficient for each
Non-Employee Director to be granted an Option for One Thousand
(1,000) shares (or the number of adjusted shares pursuant to
Section 11), then each Non-Employee Director shall be granted
an Option for a number of whole shares equal to the number of
shares then remaining available divided by the number of
Non-Employee Directors, disregarding any fractions of a
share.
6.3. Except as otherwise
provided in this Plan, each annual grant of an Option shall vest
and become exercisable in four equal installments of Two Hundred
Fifty (250) shares beginning six (6) months from the
grant date and on each anniversary of the first vesting
date.
6.4. Subject to Section 9,
each Option shall be exercisable for ten (10) years from the
date of grant and shall expire thereafter. An Option, to the extent
exercisable at any time, may be exercised in whole or in
part.
6.5. All Options shall be
confirmed by an agreement, or an amendment thereto (
“Option Agreement” ), setting forth the terms
and conditions which shall apply to such Options and which shall be
executed on behalf of the Company by the Chief Executive Officer
and by the grantee.
SECTION 7
O PTION P
RICE
7.1. The Option price per share
shall be One Hundred percent (100%) of the Fair Market Value
(as defined in Section 7.2) of one share of Common Stock on
the date the Option is granted (the “Option
Price” ).
7.2. As used in this Plan, the
term “Fair Market Value” shall be deemed to be
the closing price of the Company’s Common Stock as reported
on the National Association of Securities Dealers Automated
Quotations System (or the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on
which the Common Stock is listed at the time) (
“NASDAQ” ) on the date the Option is granted. If
there is no NASDAQ closing price quotation for such date, then the
Fair Market Value shall be determined by
-3-
reference to the NASDAQ closing price
quotation for the next preceding day on which a closing price
quotation is reported by NASDAQ.
7.3. The Option Price shall be
subject to adjustment only as provided in Section 11 of the
Plan.
SECTION 8
E XERCISE
OF O PTIONS
8.1. A Non-Employee Director
electing to exercise an Option shall give written notice to the
Company of such election and of the number of shares of Common
Stock he or she has elected to purchase, in such form as the
Committee shall have prescribed or approved, and shall at the time
of exercise tender the full Option Price of the shares of Common
Stock he or she has elected to purchase.
8.2. The Option Price shall be
paid in full upon exercise and shall be payable in cash in United
States dollars (including check, bank draft or money order);
provided, however, that in lieu of cash, the person exercising the
Option may pay the Option Price in whole or in part by delivering
to the Company shares of the Common Stock owned by him or her and
having a fair market value on the date of exercise equal to the
cash Option Price applicable to his or her Option or by any other
method as the Committee may provide from time to time, except that
(i) any portion of the Option Price representing a fraction of
a share shall in any event be paid in cash and (ii) no shares
of the Common Stock which have been held for less than six
(6) months may be delivered in payment of the Option Price of
an Option. Delivery of shares may also be accomplished through the
effective transfer to the Company of shares held by a broker or
other agent.
8.3. Notwithstanding the
provisions of Section 8.2 above, the exercise of the Option
shall not be deemed to occur and no shares of Common Stock will be
issued by the Company upon exercise of the Option until the Company
has received payment of the Option Price in full.
8.4. Promptly after receiving
payment of the Option Price of the shares of Common Stock as to
which an Option is exercised, the Company shall deliver to the
Non-Employee Director or to such other person as may then have the
right to exercise the Option or as directed by the Non-Employee
Director or such other person a certificate or certificates for the
Common Stock for which the Options have been exercised.
8.5. A grantee shall have no
rights as a stockholder with respect to any shares covered by his
or her Option(s) until such Common Stock has been paid for in full
and issued to such person. No adjustments shall be made for
dividends (ordinary or extraordinary), whether in cash, securities
or other property, or distributions or other rights, for which the
record date is prior to the date such stock certificate is issued,
except as provided in Section 11 hereof.
-4-
8.6. Payment of the Option Price
with shares of Common Stock shall not increase the number of shares
of Common Stock which may be issued under the Plan as provided in
Section 4 above.
8.7. Notwithstanding any
provision of the Plan or any provision or limitation in any Option
to the contrary, if there occurs a “Change of Control”
of the Company (as defined below), then all outstanding Options
held by grantees who, at the time of the Change in Control are
Non-Employee Directors, may be exercised with respect to all shares
of Common Stock subject thereto at any time following the
occurrence of such Change of Control of the Company until the
expiration date specified in the applicable Option Agreement. As
used herein, a “Change of Control” shall
mean:
(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 the event described in this subsection (a),
shall not be deemed a Change in Control by virtue of any of the
following acquisitions: (i) by the Company or any corporation
controlled by the Company, (ii) by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (iii) by any
underwriter temporarily holding securities pursuant to an offering
of such securities, (iv)
| 
