Exhibit 2.3
Annex 3
SHAREHOLDER AGREEMENT
Shareholder Agreement (the "Agreement"), dated as of
December 19, 1996, by and between (i) Xxxxxxx 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.
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.
5. Competition. Neither Shareholder nor any
corporation, partnership, trust or other entity controlled by
Shareholder shall:
(a) at any time within a three-year period
immediately
following the Effective Time, engage in, be employed by,
acquire an equity interest in or start, or otherwise provide
any assistance to, directly or indirectly, any business
which
provides banking services, including, but not limited to,
deposit and operational services, loans, trust services,
escrow services and electronic banking services ("Banking
Businesses"), in the counties of Los Angeles, Orange and San
Diego in the State of California so long as Monarch or its
assigns remain engaged in any Banking Businesses;
(b) at any time following the Effective Time,
disclose
confidential information regarding the Company or the
Company
Bank to any third parties, except as required by law,
regulation, a court order, in the defense of litigation for
which the Company or the Company Bank may be liable, or in
any
actions relating to this Agreement or the Merger Agreement
and
the transactions contemplated hereby or thereby; and
(c) solicit, directly or indirectly, on its own
behalf
or on behalf of any other person or entity, management
personnel employed by Monarch immediately after the
Effective
Time for employment with any other business;
provided, however, that with respect to any of the matters
covered
in this Section 5, to the extent that any restriction set forth
in
this Section 5 is adjudicated to be invalid or unenforceable in
any
jurisdiction, the court making such determination shall have the
power to limit, construe or reduce the duration, scope, activity
or
area of such provision to the extent necessary to render such
provision enforceable to the maximum extent permitted by
applicable
law, such limited form to apply only with respect to the
operation
of such provision in the particular jurisdiction in which such
adjudication is made.
6. 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, 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.
7. 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.
8. 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.
9. 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):
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:
Xxxxxxx Xxxxxx
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
10. 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 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.___
Name: Xxxx X. Xxxxx, Xx.
Title: Chairman
Xxxxxxx Xxxxxx
(Print or type name)
___/s/ Xxxx Stuenkel___
(Signature)
