EXHIBIT 9.5
SHAREHOLDER AGREEMENT
Shareholder Agreement (the "Agreement"), dated as of April 16,
1998, by and among (i) Xxxxxx Xxxx, a shareholder (the "Shareholder")
of Bank of Los Angeles, a California banking corporation (the "Company"),
(ii) Western Bancorp, a California corporation ("Western") and (iii) Santa
Xxxxxx Bank, a California banking corporation ("Santa Xxxxxx"). All terms
used herein and not defined herein shall have the meanings assigned thereto
in the Merger Agreement (defined below).
Whereas, Western, Santa Xxxxxx and the Company 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 Santa Xxxxxx pursuant to the terms and
conditions of the Merger Agreement (the "Merger") and Western will pay
consideration to the Company's shareholders in the form of Western 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 Western and Santa Xxxxxx to enter into the
Merger Agreement and in consideration of the substantial expenses incurred and
to be incurred by Western and Santa Xxxxxx in connection therewith, the
Shareholder, solely in such Shareholder's capacity as a shareholder of the
Company, 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. Except to a donee who agrees in writing to be
bound by the provisions of Section 1 hereof, 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 Western and Santa Xxxxxx 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, except as set forth on Annex A hereto,
the Shares are so owned free and clear of any liens, security interests,
charges or other encumbrances.
5. DISCLOSURE; SOLICITATION. Neither Shareholder nor any corporation,
partnership, trust or other entity controlled by Shareholder shall:
a. at any time following the Effective Date, disclose confidential
information regarding the Company to any third parties, except as required
by law, regulation, a court order, in the defense of litigation for which
the Company may be liable, or in any actions relating to this Agreement or
the Merger Agreement and the transactions contemplated hereby or thereby;
and
-2-
b. for a period of two years following the Effective Date, solicit,
directly or indirectly, on its own behalf or on behalf of any other person
or entity, management personnel employed by Western or Santa Xxxxxx
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 Western or to Santa
Xxxxxx if Shareholder fails to comply with the obligations imposed by this
Agreement and that, in the event of any such failure, Western and Santa Xxxxxx
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 Western or Santa Xxxxxx
have 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 Western or Santa Monica's seeking or obtaining such equitable
relief. In addition to all other rights or remedies which Western or Santa
Xxxxxx xxx 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 Western and Santa Xxxxxx for all litigation costs and attorneys'
fees incurred by Western and Santa Xxxxxx in connection with the enforcement of
any of its rights or remedies against Shareholder. In addition, after
discussing the matter with Shareholder, Western and Santa Xxxxxx shall have the
right to inform any third party that Western and Santa Xxxxxx 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 Western and Santa Xxxxxx hereunder,
and that participation by any such persons with Shareholder in activities in
violation of Shareholder's agreement with Western and Santa Xxxxxx set forth in
this Agreement may give rise to claims by Western and Santa Xxxxxx against such
third party.
7. TERM OF AGREEMENT; TERMINATION. a. The term of this Agreement
shall commence on the date hereof.
b. This Agreement shall terminate upon the date, if any, of the
termination of the Merger Agreement prior to the Effective Time 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
-3-
of this Agreement PRIOR to such termination. If this Agreement is terminated
pursuant to Section 8.01 of the Merger Agreement, so long as the Company honors
its applicable obligations under Section 8.03 of the Merger Agreement, no party
shall have any further obligations or liabilities under this Agreement.
c. If the Merger Agreement is not terminated prior to the Effective
Time, this Agreement (except for the provisions of Sections 4, 5(b), 6, 9 and
10, which shall survive the Effective Time), shall terminate upon the Effective
Time. Sections 4, 5, 6, 9 and 10 shall terminate on the date two years after
the Effective Time.
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 Western or Santa Xxxxxx:
Western 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, Esq.
-4-
If to the Shareholder:
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 or officer 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.
11. ATTORNEY'S FEES. The prevailing party or parties in any
litigation, arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party or parties all fees and disbursements of
counsel (including expert witness and other consultants' fees and costs)
relating to or arising out of (a) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from
-5-
the Proceeding. All such judgments and awards shall contain a specific
provision for the recovery of all such subsequently incurred costs, expenses,
and fees and disbursements of counsel.
-6-
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
WESTERN BANCORP
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
SANTA XXXXXX
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
Xxxxxx Xxxx
--------------------------------
(Print or type name)
/s/ Xxxxxx Xxxx
--------------------------------
(Signature)
-7-
