VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 19, 1999 (this "Agreement"), between
________________ (the "Shareholder") and U.S. BANCORP, a Delaware corporation
("Acquirer").
WHEREAS, Western Bancorp, a California corporation ("Seller"), and Acquirer
are contemporaneously entering into an Agreement and Plan of Merger, dated as of
this date (the "Merger Agreement"), which provides, among other things, for the
merger of Seller with and into Acquirer (the "Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Acquirer has requested that the Shareholder make certain agreements
with respect to certain shares of Common Stock, no par value per share
("Shares"), of Seller beneficially owned by Shareholder, upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, in order to induce Acquirer to enter into the Merger Agreement,
the Shareholder is willing to make certain agreements with respect to the
Subject Shares (as defined);
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, the parties agree as follows:
1. VOTING AGREEMENTS. For so long as this Agreement is in effect, in any
meeting of shareholders of Seller, and in any action by consent of the
shareholders of Seller, the Shareholder shall vote, or, if applicable, give
consents with respect to, all of the Subject Shares that are held by the
Shareholder on the record date applicable to the meeting or consent (i) in favor
of the Merger Agreement and the Merger contemplated by the Merger Agreement, as
the Merger Agreement may be modified or amended from time to time in a manner
not adverse to the Shareholder; (ii) against any competing Takeover Proposal (as
defined in the Merger Agreement) or other proposal inconsistent with the Merger
Agreement or which may delay the likelihood of the completion of the Merger;
(iii) against any change in a majority of the persons who constitute the board
of directors of Seller; or (iv) against any change in the capitalization of
Seller or any amendment of the Seller's Articles of Incorporation or Bylaws.
Such Shareholder shall not enter into any agreement or understanding with any
person the effect of which would be inconsistent with or violate the provisions
of agreements contained in this Section 1. The Shareholder shall use reasonable
best efforts to cast Shareholder's vote or give Shareholder's consent in
accordance with the procedures communicated to Shareholder by Seller relating
thereto so that the vote or consent shall be duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of that vote or consent.
2. SUBJECT SHARES. The term "Subject Shares" shall mean the Shares set
forth opposite the Shareholder's name on Schedule A hereto, together with any
shares of Seller
acquired by the Shareholder after the date hereof over which the Shareholder
has the power to vote or power to direct the voting.
3. COVENANTS. For so long as this Agreement is in effect, the Shareholder
agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender
or otherwise dispose of, or enter into any contract with respect to the sale,
transfer, pledge, assignment, hypothecation, encumbrance, tender or other
disposition of (each such disposition or contract, a "Transfer"), any Subject
Shares or Shares the Shareholder then has the right to acquire, or will have the
right to acquire within 60 days, pursuant to options to purchase Shares granted
to the Shareholder by Seller; (ii) grant any proxies with respect to any shares
that then constitute Subject Shares, deposit any of the Subject Shares into a
voting trust or enter into a voting or option agreement with respect to any of
the Subject Shares inconsistent with the Merger Agreement or this Agreement;
(iii) subject to Section 7, directly or indirectly, solicit, initiate, encourage
or otherwise facilitate any inquiries or the making of any proposal or offer
with respect to an Takeover Proposal or engage in any negotiation concerning, or
provide any confidential information or data to, or have any discussions with
any person relating to, an Takeover Proposal; or (iv) take any action which
would make any representation or warranty of the Shareholder in this Agreement
untrue or incorrect or prevent, burden or materially delay the consummation of
the transactions contemplated by this Agreement; PROVIDED, HOWEVER, that nothing
in the foregoing provisions of this Section 3 shall prohibit the Shareholder
from effecting any Transfer of Subject Shares pursuant to any bona fide
charitable gift or by will or applicable laws of descent and distribution, or
for estate planning purposes, if the transferee agrees in writing to be bound by
the provisions of this Agreement. As used in this Agreement, "person" shall have
the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The Shareholder
represents and warrants to Acquirer that:
(a) CAPACITY; NO VIOLATIONS. The Shareholder has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by the
Shareholder and constitutes a valid and binding agreement of the Shareholder
enforceable against the Shareholder in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and general principles of equity
(whether considered in a proceeding in equity or at law). The execution,
delivery and performance by the Shareholder of this Agreement will not (i)
conflict with, require a consent, waiver or approval under, or result in a
breach or default under, any of the terms of any contract, commitment or other
obligation to which the Shareholder is a party or by which the Shareholder is
bound; (ii) violate any order, writ, injunction, decree or statute, or any law,
rule or regulation applicable to the Shareholder or the Subject Shares; or (iii)
result in the creation of, or impose any obligation on the Shareholder to
create, any Lien upon the Subject Shares that would prevent the Shareholder from
voting the Subject Shares. In this Agreement, "Lien" shall mean any lien,
pledge, security interest, claim, third party right or other encumbrance.
(b) SUBJECT SHARES. As of the date of this Agreement, the Shareholder is
the beneficial owner of and has the power to vote or direct the voting of the
Subject Shares free and clear of any Liens that would prevent the Shareholder
from voting such Subject Shares. As of the date of this Agreement, the Subject
Shares are the only shares of any class of capital stock of Seller which the
Shareholder has the right, power or authority (sole or shared) to sell or vote,
and, other than options or warrants to purchase Shares held by the Shareholder
as of this date, the Shareholder does not have any right to acquire, nor is it
the beneficial owner of, any other shares of any class of capital stock of
Seller or any securities convertible into or exchangeable or exercisable for any
shares of any class of capital stock of Seller. The Shareholder is not a party
to any contracts (including proxies, voting trusts or voting agreements) that
would prevent the Shareholder from voting the Subject Shares.
5. EXPENSES. Each party to this Agreement shall pay its own expenses
incurred in connection with this Agreement.
6. SPECIFIC PERFORMANCE. The Shareholder acknowledges and agrees that if
Shareholder fails to perform any of Shareholder's obligations under this
Agreement, immediate and irreparable harm or injury would be caused to Acquirer
for which money damages would not be an adequate remedy. In that event, the
Shareholder agrees that Acquirer shall have the right, in addition to any other
rights it may have, to specific performance of this Agreement. Accordingly, if
Acquirer should institute an action or proceeding seeking specific enforcement
of the provisions of this Agreement, the Shareholder hereby waives the claim or
defense that Acquirer has an adequate remedy at law and hereby agrees not to
assert in that action or proceeding the claim or defense that a remedy at law
exists. The Shareholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any equitable
relief.
7. SHAREHOLDER CAPACITY. No person bound by this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. The Shareholder signs solely in Shareholder's capacity as the
beneficial owner of the Shareholder's Subject Shares and nothing herein shall
limit or affect any actions taken by the Shareholder in any capacity as an
officer or director of Seller to the extent specifically permitted by the Merger
Agreement. Nothing in this Agreement shall be deemed to constitute a transfer of
the beneficial ownership of the Subject Shares by the Shareholder.
8. NOTICES. All notices and other communications given or made pursuant
to this Agreement shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by telecopy, to the applicable
party at the following addresses or telecopy numbers (or at any other address or
telecopy number for a party as shall be specified by like notice):
If to Acquirer, to: U.S. Bancorp
U.S. Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Mitau, Esq.
Facsimile: (000) 000-0000
With a copy to: Xxxxxx & Whitney LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx X. Xxxxxxx, Esq.
Xxxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Shareholder:
With a copy to: Irell & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxx Xxxxx, Esq.
Facsimile: (000) 000-0000
9. PARTIES IN INTEREST. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective successors and assigns;
provided, however, that any successor in interest or assignee shall agree to be
bound by the provisions of this Agreement. Nothing in this Agreement, express or
implied, is intended to confer upon any Person other than Acquirer, the
Shareholder or their successors or assigns, any rights or remedies under, or by
reason, of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement between the Shareholder and Acquirer with respect to the subject
matter of this Agreement and supersedes all prior and contemporaneous agreements
and understandings, oral or written, with respect to these transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
11. ASSIGNMENT. No party to this Agreement may assign any of its rights
or obligations under this Agreement without the prior written consent of the
other party to this Agreement, except that (a) Acquirer may assign its rights
and obligations under this Agreement to any of its direct or indirect wholly
owned subsidiaries (including Acquirer Sub), but no transfer shall relieve
Acquirer of its obligations under this Agreement if the transferee does not
perform its obligations, and (b) the Shareholder may transfer Subject Shares to
the extent permitted by Section 3 of this Agreement.
12. HEADINGS. The section headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
15. TERMINATION. This Agreement shall terminate automatically and without
further action on behalf of any party at the earlier of (i) the Effective Time
(as defined in the Merger Agreement) and (ii) the date the Merger Agreement is
terminated pursuant to its terms.
[Signature page follows]
IN WITNESS WHEREOF, Acquirer and the Shareholder have caused this Agreement
to be duly executed and delivered on the day and year first above written.
U.S. BANCORP
By
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
[Print Name of Shareholder]
SCHEDULE A
SHAREHOLDER SHARES OWNED
