SHAREHOLDER AGREEMENT
Shareholder Agreement (the "Agreement"), dated as of April 29, 1997,
by and between (i) Peer X. Xxxx, a director and shareholder (the "Shareholder")
of SC Bancorp, 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 Reorganization, 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 has agreed to furnish Monarch (within 10
days after the date hereof) a list setting forth the number of shares of Company
Common Stock owned by Shareholder 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. 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
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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):
If to Monarch:
Monarch Bancorp
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
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If to the Shareholder:
Mr. Peer X. Xxxx
Pacific Scientific Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxx Xxxxxxxxxx
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
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 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
MONARCH BANCORP
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
President
SHAREHOLDER:
/s/ Peer X. Xxxx
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Peer X. Xxxx
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