EXHIBIT 9.16
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (this "Shareholder Agreement"), is made as
of this ____ day of April, 1998, by and among Community West Bancshares, a
California corporation ("Community West"), and the shareholder of Palomar
Savings & Loan Association, a California state chartered savings and loan
association ("Palomar") whose name is set forth under "Shareholder" on the
signature page hereof (the "Shareholder"). Community West is contemporaneously
herewith entering into agreements with other shareholders of Palomar, which
agreements are identical in all respects hereto, except as to (a) the number of
shares of Palomar's common stock, $4.00 par value (the "Palomar Common Stock")
owned by such other shareholders, and (b) the name and address of the other
shareholders. The Shareholder and such other persons shall hereinafter be
referred to as to the Shareholders and this Agreement and such other agreements
as "Shareholder Agreements." This Shareholder Agreement is made with reference
to the following:
RECITALS
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WHEREAS, that certain Agreement and Plan of Reorganization (the
"Agreement"), dated as of April __, 1998, entered into by and among Community
West and Palomar, provides for the acquisition by Community West of one hundred
percent (100%) of the Palomar Common Stock, through the merger (the "Merger") of
Palomar with a merger corporation which shall be a wholly-owned subsidiary of
Community West ("CWB Merger Corp"); and
WHEREAS, as a condition precedent to the obligations of Community West and
Palomar under the Agreement, the Shareholder and all the Shareholders shall have
entered into Shareholder Agreements concurrent with the execution of the
Agreement in accordance with the terms, conditions, and provisions thereof;
NOW, THEREFORE, in order to effectuate the transactions set forth above and
in consideration of the mutual covenants, conditions, agreements,
representations and warranties contained herein and in the Agreement, and
intending to be legally bound, the parties hereto agree as follows:
AGREEMENT
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ARTICLE I
COVENANTS OF SHAREHOLDER
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1.1 VOTE OF SHAREHOLDERS. At the meeting of shareholders of Palomar
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referred to in Section 7.1 of the Agreement (the "Meeting"), the Shareholder
shall vote or cause to be voted the shares of Palomar Common Stock indicated as
owned or controlled by such Shareholder on Schedule I attached hereto, and any
other shares of Palomar Common Stock now owned or hereafter acquired or
controlled by such Shareholder, in favor of, and to approve the principal terms
of, the Merger and any other matter contemplated by the Agreement which requires
the approval of the shareholders of Palomar.
1.2 OTHER CONTRACTS. From and after the date of this Shareholder
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Agreement, the Shareholder shall not enter into or become subject to any
agreement or commitment which would restrict or in any way impair the obligation
of the Shareholder to comply with all the terms of this Shareholder Agreement,
including, without limitation, any other agreement to sell, transfer or
otherwise dispose of the Shareholder shares of Palomar Common Stock.
1.3 UPDATING INFORMATION. In the event that the Shareholder shall
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discover that any representation or warranty made herein by him/her was false or
misleading in any material respect when made or that any event has occurred such
that any representation or warranty of the Shareholder made herein would, if
made at and as of the time of the occurrence of such event, or thereafter, be
incorrect in any material respect, the Shareholder shall deliver to Community
West a statement specifying that it is delivered pursuant to this Section 1.3
and stating in reasonable detail the facts with respect thereto. Delivery of
any such statement shall not limit any rights which Community West may otherwise
have under this Shareholder Agreement.
1.4 AGREEMENT TO RECOMMEND. The Shareholder agrees that, upon the
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execution of this Shareholder Agreement, he/she shall at all times use his/her
best efforts in order to obtain the approval of the shareholders of Palomar of
the principal terms of the Merger and any other matter contemplated by the
Agreement which requires approval of the shareholders of Palomar and shall
recommend the approval of such matters by the shareholders of Palomar at the
Meeting.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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OF SHAREHOLDER
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2.1 REPRESENTATIONS AND WARRANTIES OF DIRECTOR. The Shareholder
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represents and warrants to, and agrees with, Community West as follows:
(a) CAPACITY. The Shareholder has all requisite capacity to enter
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into and to perform the Shareholder's obligations under this Shareholder
Agreement.
(b) AGREEMENT. The Shareholder has received a copy of the
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Agreement and has had the opportunity to review and to consider the terms and
conditions contained in this Shareholder Agreement and in the Agreement and to
confer with his or her counsel concerning said terms and conditions.
(c) BINDING AGREEMENT. This Shareholder Agreement has been duly
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executed and delivered by such Shareholder and constitutes a valid and legally
binding agreement of such Shareholder.
(d) OWNERSHIP OF SHARES, ETC. Schedule I hereto correctly sets
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forth the number of shares of Palomar Common Stock owned by the Shareholder or
with respect to which such Shareholder has sole or shared voting power, and the
Shareholder has good and marketable title to all such shares of Palomar Common
Stock free and clear of any liens, security interests, charges or other
encumbrances of any kind or nature except as set forth on Schedule I.
(e) RELATIONSHIP WITH PALOMAR. The Shareholder is a director or
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executive officer of Palomar.
(f) NON-CONTRAVENTION. The execution and delivery of this
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Agreement by the Shareholder does not, and the performance by the Shareholder of
the Shareholder's obligations hereunder and the consummation by the 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 the
Shareholder is a party or by which the Shareholder is bound, or any statute,
rule or regulation to which the Shareholder or any of the Shareholder's property
is subject.
ARTICLE III
DISCLOSURE AND TRADING
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The Shareholder hereby covenants and agrees that upon receipt of the
disclosure of a Strategic Transaction Proposal or a Community West Acquisition
Transaction (as those terms are defined in the Agreement), Shareholder shall
maintain the confidentiality of all non-public information regarding the
Strategic Transaction Proposal or the Community West Acquisition Transaction to
the same extent required by the parties to any such transaction under the terms
of any confidentiality agreement to which those parties are bound and to refrain
from trading in securities of Community West, Palomar, any subsidiary thereof or
any other party to the Strategic Transaction Proposal or Community West
Acquisition Transaction until the earlier of: (i) full public disclosure of such
non-public information has been made and trading in the subject securities would
not be a violation of applicable securities laws, or (ii) the Strategic
Transaction Proposal or Community West Acquisition Transaction has been
terminated or has expired by its terms and disclosure of such non-public
information is permitted under the terms of any agreement regarding the
transaction and trading in the subject securities would not be a violation of
applicable securities laws.
ARTICLE IV
TERMINATION
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TERMINATION. This Shareholder Agreement shall automatically terminate and
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be of no further force or effect if the Agreement is terminated in accordance
with the terms thereof, except as to any breach of this Shareholder Agreement by
the Shareholder occurring prior to the date of such termination. The
representations and warranties set forth in Article II and the covenants and
agreements of Articles III and V hereof shall survive the termination of this
Shareholder Agreement and the Closing.
ARTICLE V
MISCELLANEOUS
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5.1 EXPENSES. Each party hereto shall pay its own costs and expenses
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in connection with this Shareholder Agreement and the transactions covered and
contemplated hereby; provided, however, that nothing contained herein shall
preclude the payment of the Shareholder's expenses in connection with the
negotiation and documentation of this Shareholder's Agreement by Palomar.
5.2 NOTICES, ETC. All communications required or permitted to be
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given hereunder shall be in writing and shall be deemed to have been duly given
to the appropriate parties if delivered in person (professional carrier
acceptable) or by United States mail, certified and with return receipt
requested, or otherwise actually delivered:
(a) If to the Shareholder, to the address set forth on Schedule I
attached hereto.
With a copy to:
Palomar Savings & Loan Association
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxx
With a copy to: Xxxxx, Xxxxxxxx & Xxxx, LLP
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx, Esq.
(b) If to Community West
Community West Bancshares
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxx
President and Chief Executive Officer
With a copy to: Horgan, Rosen, Beckham & Coren, LLP
00000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Professional Corporation
FAX: (000) 000-0000
or such other address as any party may have furnished in writing to the other
parties.
5.3 ENTIRE AND SOLE AGREEMENT. The making, execution and delivery of
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this Shareholder Agreement by the parties hereto have not been induced by any
representations, statements, warranties or agreements other than those expressed
herein and in the Agreement. This Shareholder Agreement and the Agreement
embody the entire understanding of the parties, and there are no further or
other agreements or understandings, whether written or oral, in effect among the
parties relating to the subject matter hereof, unless expressly referred to by
reference herein.
5.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
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Shareholder Agreement, all covenants and agreements of the parties contained in
this Shareholder Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto.
5.5 GOVERNING LAW. This Shareholder Agreement shall be construed and
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enforced in accordance with and governed by the laws of the State of California.
Each party hereto hereby submits to the jurisdiction of the courts of the County
of Santa Xxxxxxx for the purpose of any suit, action or other proceeding arising
out of such party's obligations under or with respect to this Agreement.
5.6 COUNTERPARTS. This Shareholder Agreement may be executed
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simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
5.7 AMENDMENT, SUPPLEMENT AND WAIVER. This Shareholder Agreement may
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be amended or supplemented, and compliance with the provisions hereof may be
waived only by an instrument in writing signed by the party against which
enforcement of such amendment, supplement or waiver of compliance is sought.
5.8 HEADINGS. The headings in this Shareholder Agreement are for
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purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
5.9 SPECIFIC PERFORMANCE. It is recognized and agreed that monetary
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damages will not compensate the parties hereto for nonperformance by any party.
Accordingly, each party agrees that his or her obligation shall be enforceable
by a court order requiring specific performance.
5.10 SEVERAL OBLIGATIONS. All duties and obligations of the
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Shareholder executing this Shareholder Agreement shall be several and not joint
with the duties and obligations of other Shareholders executing similar
Shareholder Agreements with Community West.
IN WITNESS WHEREOF, the parties hereto have caused this Shareholder
Agreement to be duly executed as of the date first above written.
SHAREHOLDER COMMUNITY WEST BANCSHARES
Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
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(Name) Xxxxxxxxx X. Xxxxx
Its: President and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
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(Signature)
SCHEDULE 1
NAME OF SHAREHOLDER: Xxxxxxx X. Xxxxxx
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ADDRESS OF SHAREHOLDER: 00000 Xxxxx Xxxxxx Xxxxx
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Xxxxx, XX 00000
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CERTIFICATE NUMBER NUMBER OF SHARES REGISTERED OWNER(S)
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1,912 Xxxxxxx X. Xxxxxx
1,935 Xxxxxxx X. Xxxxxx &
Margaretha X.X. Xxxxxx
DESCRIBE ANY LIENS:
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None
