Execution Copy
SHAREHOLDER AGREEMENT
Shareholder Agreement (the "Agreement"), dated as of December 19,
1996, by and between (i) Xxxxxxx X. Xxxxxx, a director and shareholder (the
"Shareholder") of California Commercial Bankshares, a California corporation
(the "Company"), and (ii) Monarch Bancorp, a California corporation ("Monarch").
All terms used herein and not defined herein shall have the meaning assigned
thereto in the Merger Agreement (defined below).
Whereas, the Company and Monarch have entered into an Agreement and
Plan of Merger, dated the date hereof (the "Merger Agreement"), providing for
the business combination transaction contemplated therein in which the Company
will merge with and into Monarch pursuant to the terms and conditions of the
Merger Agreement (the "Merger") and Monarch will pay consideration to the
Company's shareholders in the form of Monarch Common Stock;
Whereas, the Shareholder owns the shares of Company Common Stock
identified on ANNEX I hereto (such shares, together with all shares of Company
Common Stock subsequently acquired by the Shareholder during the term of this
Agreement, being referred to as the "Shares"); and
Whereas, in order to induce Monarch to enter into the Merger Agreement
and in consideration of the substantial expenses incurred and to be incurred by
Monarch in connection therewith, the Shareholder has agreed to enter into and
perform this Agreement.
Now, therefore, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AGREEMENT TO VOTE SHARES. Shareholder shall vote or cause to be
voted, or execute a written consent with respect to, the Shares (a) in favor of
adoption and approval of the Merger Agreement and the Merger and all
transactions relating thereto at every meeting of the shareholders of the
Company at which such matters are considered and at every adjournment thereof
and in connection with every proposal to take action by written consent with
respect thereto, and (b) against any other Acquisition Proposal at every meeting
of the shareholders of the Company at which such matters are considered and at
every adjournment thereof and in connection with every proposal to take action
by written consent with respect thereto.
2. NO VOTING TRUSTS. Shareholder agrees that Shareholder will not,
nor will Shareholder permit any entity under Shareholder's control to, deposit
any Shares in a voting trust or subject the Shares to any agreement, arrangement
or understanding with respect to the voting of the Shares inconsistent with this
Agreement.
3. LIMITATION ON SALES. During the term of this Agreement,
Shareholder agrees not to sell, assign, transfer or dispose of any of the
Shares, except for the sale of up to 10,000 shares.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder
represents and warrants to and agrees with Monarch as follows:
a. CAPACITY. Shareholder has all requisite capacity and authority
to enter into and perform his or her obligations under this Agreement.
b. BINDING AGREEMENT. This Agreement constitutes the valid and
legally binding obligation of Shareholder, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
c. NON-CONTRAVENTION. The execution and delivery of this Agreement
by Shareholder does not, and the performance by Shareholder of his or her
obligations hereunder and the consummation by Shareholder of the
transactions contemplated hereby will not, violate or conflict with, or
constitute a default under, any agreement, instrument, contract or other
obligation or any order, arbitration award, judgment or decree to which
Shareholder is a party or by which Shareholder is bound, or any statute,
rule or regulation to which Shareholder is subject or, in the event that
Shareholder is a corporation, partnership, trust or other entity, any
charter, bylaw or other organizational document of the Shareholder.
d. OWNERSHIP OF SHARES. Shareholder has good title to all of the
Shares as of the date hereof, and the Shares are so owned free and clear of
any liens, security interests, charges or other encumbrances, subject to
the pledge of such Shares to Orange National as heretofore disclosed to
Monarch (the Shareholder representing to Monarch that, with respect to such
pledged Shares, he retains the ability to vote such shares for the Merger).
5. SPECIFIC PERFORMANCE AND REMEDIES. Shareholder acknowledges that
it will be impossible to measure in money the damage to Monarch if Shareholder
fails to comply with the obligations imposed by this Agreement and that, in the
event of any such failure, Monarch will not have an adequate remedy at law or in
damages. Accordingly,
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Shareholder agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or in damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that Monarch has an
adequate remedy at law. Shareholder agrees that it will not seek, and agrees to
waive any requirement for, the securing or posting of a bond in connection with
Monarch's seeking or obtaining such equitable relief. In addition to all other
rights or remedies which Monarch may have against Shareholder in the event of a
default in Shareholder's performance of Shareholder's obligations under this
Agreement, Shareholder shall be liable to Monarch for all litigation costs and
attorneys' fees incurred by Monarch in connection with the enforcement of any of
its rights or remedies against Shareholder. In addition, after discussing the
matter with Shareholder, Monarch shall have the right to inform any third party
that Monarch reasonably believes to be, or to be contemplating, participating
with Shareholder or receiving from Shareholder assistance in violation of this
Agreement, of the terms of this Agreement and of the rights of Monarch
hereunder, and that participation by any such persons with Shareholder in
activities in violation of Shareholder's agreement with Monarch set forth in
this Agreement may give rise to claims by Monarch against such third party.
6. TERM OF AGREEMENT; TERMINATION. The term of this Agreement shall
commence on the date hereof and such term and this Agreement shall terminate
upon the earlier to occur of (i) the Effective Time, and (ii) the date on which
the Merger Agreement is terminated in accordance with its terms. Upon such
termination, no party shall have any further obligations or liabilities
hereunder; PROVIDED, HOWEVER, such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
7. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by each party hereto. No waiver of any provisions
hereof by either party shall be deemed a waiver of any other provisions hereof
by any such party, nor shall any such waiver be deemed a continuing waiver of
any provision hereof by such party.
8. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by a
reputable overnight courier service to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
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If to Monarch:
Monarch Bancorp
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxx Xxxxxx
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Shareholder:
c/o California Commercial Bankshares
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telecopier: (000) 000-0000
With a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
9. MISCELLANEOUS.
a. SEVERABILITY. If any provision of this Agreement or the
application of such provision to any person or circumstances shall be held
invalid or unenforceable by a court of competent jurisdiction, such
provision or application shall be unenforceable only to the extent of such
invalidity or unenforceability, and the remainder of the provision held
invalid or unenforceable and the application of
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such provision to persons or circumstances, other than the party as to
which it is held invalid, and the remainder of this Agreement, shall not be
affected.
b. CAPACITY. The covenants contained herein shall apply to
Shareholder solely in his or her capacity as a shareholder of the Company,
and no covenant contained herein shall apply to Shareholder in his or her
capacity as a director of the Company.
c. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
d. HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
E. CHOICE OF LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE
UNDER, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW
PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
MONARCH BANCORP
By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Chairman
Xxxxxxx X. Xxxxxx
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(Print or type name)
/s/ Xxxxxxx X. Xxxxxx
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(Signature)
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