Exhibit 10.1
AMENDED AND RESTATED SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER AGREEMENT (the
"Agreement") is made as of the 6 day of April, 1999 by and among Eldorado
Bancshares, Inc., a Delaware corporation (as further defined below, the
"Company"), Madison Dearborn Capital Partners II, L.P., a Delaware limited
partnership ("MDP"), Olympus Growth Fund II, L.P., a Delaware limited
partnership ("Olympus I"), Olympus Executive Fund, L.P., a Delaware limited
partnership ("Olympus II" and collectively with Olympus I, "Olympus"), Dartmouth
Capital Group, L.P., a Delaware limited partnership ("DCG"), Dartmouth Capital
Group, Inc., a Delaware corporation and the sole general partner of DCG (the
"General Partner"), and Xxxxxx X. Xxxxxx ("Xxxxxx"). MDP and Olympus are
collectively referred to herein as the "Purchasers." The Company, the
Purchasers, DCG, the General Partner and Xxxxxx are collectively referred to as
the "Parties". The Purchasers, Xxxxxx, any Purchaser Assignee (as defined
herein) and each other Person (as defined herein) that is or becomes a party to
this Agreement are collectively referred to herein as the "Shareholders."
WHEREAS, the Company, the Purchasers, DCG, the General Partner, Xxxxxx
and certain other persons entered into and are parties to a certain Shareholder
Agreement dated as of June 6, 1997 (the "Original Agreement");
WHEREAS, pursuant to Section 19 of the Original Agreement, the Original
Agreement may (with certain exceptions not here applicable) be amended by the
agreement of the Parties; and
WHEREAS, the Parties desire to amend the Original Agreement by amending
and restating it in its entirety as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms contained in this Agreement
and not otherwise defined herein shall have the meanings set forth in this
Section 1.
"Affiliate" shall have the meaning set forth in Rule 12b-2 of
the regulations promulgated under the Securities Exchange Act of 1934,
as amended.
"Associate" shall have the meaning set forth in Rule 12b-2 of
the regulations promulgated under the Securities Exchange Act of 1934,
as amended.
"BHC Act" means the Bank Holding Company Act of 1956, as
amended, or any successor statute.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday or Friday that banks in Los Angeles, California are not
required or permitted by law to be closed.
"Business Combination" shall mean any liquidation or
reorganization (other than a liquidation or reorganization conducted in
connection with any insolvency or bankruptcy proceeding of the
Company), or a merger or consolidation of the Company, or sale or other
disposition of all or substantially all of the assets of the Company.
"Common Stock" means any or all of the Common Stock of the
Company, par value $.01 per share, the Non-Voting Common Stock of the
Company, par value $.01 per share, or any other equity security of the
Company or any Resulting Company that may be issued in exchange for any
or all of such Common Stock or Non-Voting Common Stock.
"Common Stock Equivalent" means a security that is
characterized as a Common Stock Equivalent for purposes of generally
accepted accounting principles then prevailing in the United States;
numbers of Common Stock Equivalents refer to the maximum number of
shares of Common Stock into which such Common Stock Equivalent may be
exercised or converted.
"Company" shall mean Eldorado Bancshares, Inc. and any
Resulting Company.
"Covered Securities" mean the shares of Common Stock and the
Series B Warrants held by the Purchasers as of the date of this
Agreement.
"Covered Shares" shall mean the Covered Securities and the
shares issuable to the holders upon exercise of the Series B Warrants.
"ELBI Securities" means any or all of the Common Stock, the
Series B Warrants and any other capital stock or equity or debt
interest issued by the Company which is or by its terms may be
convertible into Common Stock.
"FRB" means the Federal Reserve Bank of San Francisco, the
staff of the Board of Governors of the Federal Reserve System, or the
Board of Governors of the Federal Reserve System, as applicable.
"Person" means an individual, bank, corporation, partnership,
company, limited liability company, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or
any such individual or entity acting directly or indirectly, or through
or in concert with, one or more such individuals or entities;
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"Purchaser Assignee" means any direct or indirect transferee
of Covered Securities from any Purchaser Shareholder, if such
transferee has become a signatory to this Agreement by executing the
Affirmation Agreement attached hereto as EXHIBIT A.
"Purchaser Registration Agreement" shall mean the Registration
Rights Agreement dated June 6, 1997 by and between the Company and MDP
and Olympus.
"Purchaser Shareholder" shall mean either Purchaser and any
Purchaser Assignee.
"Qualified Holder" shall mean a Purchaser Shareholder that has
delivered to the Secretary of the Company an opinion or memorandum of
counsel, in form and substance reasonably satisfactory to the Company,
or other reasonably satisfactory evidence, to the effect that such
Purchaser Shareholder may beneficially own more than 14.9% of the
outstanding Voting Securities of the Company and will acquire such
shares in accordance with the BHC Act.
"Resulting Company" shall mean the entity resulting from a
Business Combination involving the Company (including, without
limitation, an entity which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries).
"Securities Purchase Agreement" shall mean that certain
Amended and Restated Securities Purchase Agreement dated as of June 5,
1997 among the Parties and certain of their Affiliates.
"Series B Warrants" mean the Company's Series B Warrants
issued to the Purchasers as of June 6, 1997 or acquired by the
Purchasers from DCG as of July 15, 1997.
"Transfer" shall mean any sale, transfer, assignment, pledge
or distribution, directly or indirectly, of or the grant of any lien on
or other interest in the relevant securities.
"Voting Securities" shall mean the shares of capital stock of
the Company entitled to vote in an election of the directors of the
Company, without giving effect to the exercise of any outstanding
Common Stock Equivalents.
2. RESTRICTIONS ON TRANSFER OF COMMON STOCK BY IN DCG.
(a) Except with the prior consent of the holders of at least two-thirds
of the Common Stock and Common Stock Equivalents (treating such Common Stock
Equivalents on a fully exercised or converted basis) then held by, collectively,
the Purchasers, any Affiliates or Associates thereof, or any Purchaser Assignee,
DCG shall remain in existence and may not,
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directly or indirectly, Transfer any Common Stock that it owns, now or in the
future, if or to the extent that, immediately following such dissolution or
Transfer (taking into account any Transfers by any Purchaser Shareholder that
constitute part of the same transaction and that will occur contemporaneously
with the dissolution or Transfer by DCG)
(i) any Purchaser Shareholder (or group of Purchaser
Shareholders constituting Affiliates of one another) that is
not a Qualified Holder would hold ten percent (10%) or more of
the Common Stock then outstanding on a fully diluted basis
(determined by the method described in subsection (b) below)
AND
(ii) DCG would hold the same number or fewer shares
of Common Stock than the number of shares of outstanding
Common Stock and Common Stock Equivalents then held by one or
more Purchaser Shareholders (or by one or more groups of such
Purchaser Shareholders constituting Affiliates of one another)
that are not Qualified Holders.
(b) In calculating the value number of shares of Common Stock
outstanding on a fully diluted basis, any Common Stock Equivalents held by the
applicable Purchaser Shareholder, but not of any other holder, shall be treated
as fully exercised or converted.
(c) Notwithstanding the termination of Section 2(a) hereof, DCG shall
remain in existence and may not, directly or indirectly, Transfer any Common
Stock (or any interest therein) without the prior consent of the holders of at
least two-thirds of the Common Stock and Common Stock Equivalents (determined on
a fully exercised basis) then held by the Purchaser Shareholders if, as a result
of such dissolution or Transfer by DCG,
(i) any Purchaser Shareholder (or group of Purchaser
Shareholders constituting Affiliates of one another) that is
not a Qualified Holder would own ten percent (10%) or more of
the Voting Securities or twenty-five percent (25%) or more of
the Company's shareholders' equity, AND
(ii) on a pro forma basis giving effect to such
proposed dissolution or Transfer by DCG, a holder described in
clause (i) would own a greater percentage of Voting Securities
than any other holder of Voting Securities.
3. RESTRICTIONS ON TRANSFER OF SECURITIES BY PURCHASERS.
(a) Each of MDP and Olympus agrees, severally but not jointly, that
without the prior consent of the FRB it will not Transfer any ELBI Securities,
except pursuant to one of the following exceptions:
(i) Transfers to the Company or DCG, provided that, in the case
of a Transfer to DCG, at the time of such Transfer DCG is a registered
bank holding company and a
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controlling shareholder of the Company within the meaning of Regulation
Y, promulgated under the BHC Act, as then in effect or any successor
regulation,
(ii) Transfers in a widely dispersed public offering,
(iii) Transfers in a private sale in which each transferee will
hold less than two percent (2%) of the Common Stock on a fully diluted
basis,
(iv) Transfers to a transferee who is acquiring more than fifty
percent (50%) of the Common Stock without taking into account
securities transferred by the applicable Purchaser, or
(v) Transfers that comply with the volume and manner of sale
limitations contained in Rule 144, promulgated by the U.S. Securities
and Exchange Commission, as then in effect or any successor rule,
(vi) Transfers of any non-Common Stock security if, following
such Transfer, such security will no longer be convertible into or
exchangeable for Common Stock, and
(vii) Transfers as part of a pro rata distribution to the limited
partners of the applicable Purchaser, provided that no such limited
partner will thereby hold five percent (5%) or more of the Common Stock
and Common Stock Equivalents then outstanding.
(b) This Section 3 shall no longer be applicable to a Purchaser if such
Purchaser provides the Company with evidence reasonably satisfactory to the
Company and its counsel (which evidence may include discussions with the FRB, if
the Purchaser or the Company reasonably deems such discussions to be necessary
to clarify then existing statutes, regulations or published policy guidelines)
that (i) such Purchaser does not then own, or have the potential ability to
acquire (under the express terms of Common Stock or other ELBI Securities that
the Purchaser then owns), Common Stock or other ELBI Securities that, currently
or upon the occurrence of any subsequent event, are or may become convertible
into or exchangeable or exercisable for Common Stock, which in the aggregate
could represent fifteen percent (15%) or more of the Common Stock outstanding on
a pro forma basis, and (ii) DCG or another shareholder owns a greater percentage
of Common Stock and Common Stock Equivalents.
4. RESERVED.
5. RESERVED.
6. MARKET STAND-OFF. DCG and Xxxxxx respectively agree that for so long
as this Agreement remains in effect, such Person shall not effect any public
sale or distribution of ELBI Securities, during the seven days prior to and
during the 120-day period beginning on the effective date of any underwritten
registration demanded by one or more Purchaser Shareholders pursuant
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to Section 2(a) of the Purchaser Registration Agreement, unless the underwriters
managing the registered public offering that is the subject of Purchaser
Registration Agreement otherwise agree.
7. RESERVED.
8. SUCCESSOR PURCHASER SHAREHOLDERS.
(a) A transferee of Covered Securities from a Purchaser, or from a
prior Purchaser Shareholder, may (but shall not be required to) become a party
to this Agreement, and thereby become entitled to enforce the rights accorded
under this Agreement (subject in all events to the burdens on Purchaser
Shareholders as set forth herein) by the execution and delivery to each of the
Company, Xxxxxx, DCG and the General Partner of a counterpart Affirmation
Agreement (the "Affirmation Agreement") in the form attached hereto as EXHIBIT
A, whereupon the transferee shall be deemed to be a Purchaser Shareholder for
all purposes of this Agreement, with full power to enforce the obligations of
DCG, the General Partner and Xxxxxx hereunder.
(b) The Company shall not close its books against the transfer of any
of its capital stock in any manner which prejudices the rights of the any
Purchaser Shareholder under the Securities Purchase Agreement or any of the
documents executed by the Purchasers and the Company in connection therewith.
9. RESTRICTIVE LEGENDS.
(a) So long as DCG is subject to the restrictions on transfer set forth
in Section 2 of this Agreement, all certificates representing the ELBI
Securities held by DCG shall have affixed thereto a legend in substantially the
following form, in addition to any other legends that may be required under
federal or state securities laws:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN A CERTAIN AMENDED AND
RESTATED SHAREHOLDER AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDERS NAMED THEREIN DATED ___________, 1999 (THE
"SHAREHOLDER AGREEMENT"). A COPY OF SUCH AGREEMENT IS
AVAILABLE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY."
(b) So long a Purchaser Shareholder is subject to the restrictions on
transfer set forth in Section 3 of this Agreement, all certificates representing
the ELBI Securities held by such Purchaser Shareholder shall have affixed
thereto a legend in substantially the following form, in addition to any other
legends that may be required under federal or state securities laws:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN A CERTAIN AMENDED AND
RESTATED SHAREHOLDER AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDERS NAMED THEREIN DATED _____________, 1999 (THE
"SHAREHOLDER AGREEMENT"). A COPY OF SUCH AGREEMENT IS
AVAILABLE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY."
10. RESERVED.
11. RESERVED.
12. RESERVED.
13. REPRESENTATIONS AND WARRANTIES. Each Shareholder represents and
warrants that (i) this Agreement has been duly authorized, executed and
delivered by such Shareholder and constitutes the valid and binding obligation
of such Shareholder, enforceable in accordance with its terms and does not
conflict with any other agreement to which such Shareholder is a party, and (ii)
such Shareholder has not granted and is not a party to any proxy, voting trust
or other agreement which is inconsistent with, conflicts with or violates any
provision of this Agreement. No Shareholder shall grant any proxy or become
party to any voting trust or other agreement which is inconsistent with,
conflicts with or violates any provision of this Agreement.
14. TERMINATION.
(a) The respective obligations of DCG and Xxxxxx under Sections 2 and 6
hereof, as applicable, shall terminate if the Purchaser Shareholders transfer a
majority of the Covered Securities (determined on a fully exercised basis) to
one or more transferees who do not enter into an Affirmation Agreement.
(b) The obligations of DCG under Section 6 hereof shall terminate at
such time as no Purchaser Shareholder (or group of Purchaser Shareholders
constituting Affiliates of one another) holds Covered Shares constituting ten
percent (10%) or more of the Common Stock then outstanding on a fully diluted
basis (determined by the method described in subsection 2(b)).
(c) The obligations of DCG and Xxxxxx under Section 6 hereof shall
terminate 120 days after the effective date of the second Permitted Registration
(as defined in the Purchaser Registration Agreement) demanded by one or more of
the Purchaser Shareholders pursuant to Section 2(a) of the Purchaser
Registration Agreement.
15. REMEDIES. The Purchaser Shareholders having rights under any
provision of this Agreement shall be entitled to enforce such rights
specifically, to recover damages caused by
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reason of any breach of any provision of this Agreement and to exercise all
other rights available at law or in equity. The Parties agree and acknowledge
that money damages would not be an adequate remedy for any breach of the
provisions of this Agreement and that any Party (including Persons who hereafter
become parties to this Agreement) may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of such provisions of this Agreement.
16. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon, and inure to the benefit of, the respective successors, assigns,
heirs, executors and administrators of the Parties to the extent provided in
this Agreement.
17. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy or facsimile transmission with a confirmatory copy by regular mail,
(iii) sent by recognized overnight courier or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid. All notices,
requests, consents and other communications hereunder shall be deemed to have
been properly given (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party set forth above, (ii) if made by
telex, telecopy or facsimile transmission, at the time that receipt thereof has
been acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next Business Day following the day such notice is
delivered to the courier service or (iv) if sent by registered or certified
mail, on the fifth Business Day following the day such mailing is made.
18. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
the understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings related to such
subject matter, including the Original Agreement. Prior to the date hereof, DCG
(and certain of its affiliates) have been granted certain registration rights by
the Company; however, notwithstanding such prior grant of registration rights,
DCG and the General Partner acknowledge that the transfer restrictions set forth
in Sections 2 and 6 hereof shall control each of DCG's and the General Partner's
right to Transfer any Common Stock, regardless of whether DCG or the General
Partner has any registration rights with respect thereto.
19. AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of (i) the Company, (ii) the holders of at least two-thirds of
the Covered Securities (determined on a fully exercised basis) then held by the
Purchaser Shareholders, (iii) DCG and the General Partner (if either continues
to hold any ELBI Securities), and (iv) Xxxxxx (if he continues to hold any ELBI
Securities).
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20. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. HEADINGS. The headings of the sections, subsections, and paragraphs
of this Agreement have been added for convenience only and shall not be deemed
to be a part of this Agreement.
22. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without regard for
its principles of conflicts or laws.
* * *
IN WITNESS WHEREOF, the undersigned have hereunto set their hands under
seal as of the day and year first above written.
ELDORADO BANCSHARES, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
00000 Xxxxx xx xx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
By: Madison Dearborn Partners II, L.P., its General Partner
By: Madison Dearborn Partners, Inc., its General Partner
By: /s/ XXXX X. XXXX
----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
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OLYMPUS GROWTH FUND II, L.P.
By: OGP II, L.P., its general partner
By: Xxxxxx, L.L.C., its general partner
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Member
Metro Center
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
OLYMPUS EXECUTIVE FUND, L.P.
By: OEF, L.P., its general partner
By: Xxxxxx, L.L.C., its general partner
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Member
Metro Center
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
DARTMOUTH CAPITAL GROUP, L.P.
By: Dartmouth Capital Group, Inc., its general partner
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
c/o Eldorado Bancshares, Inc.
00000 Xxxxx xx xx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
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DARTMOUTH CAPITAL GROUP, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
c/o Eldorado Bancshares, Inc.
00000 Xxxxx xx xx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
XXXXXX X. XXXXXX
/s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
c/o Eldorado Bancshares, Inc.
00000 Xxxxx xx xx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
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EXHIBIT A
AFFIRMATION AGREEMENT
THIS AFFIRMATION AGREEMENT, dated as of , is entered
into by and among Eldorado Bancshares, Inc., a Delaware corporation (the
"Company"), and ("Transferee").
WHEREAS, Transferee is (or is proposed to be) the transferee of certain
shares of capital stock of the Company (the "Shares");
WHEREAS, the Shares were initially issued by the Company to a
Shareholder subject to that certain Shareholder Agreement dated June 6, 1997 by
and among the Company, Madison Dearborn Capital Partners II, L.P., a Delaware
limited partnership, Olympus Growth Fund II, L.P., a Delaware limited
partnership, Olympus Executive Fund, L.P., a Delaware limited partnership,
Dartmouth Capital Group, L.P., a Delaware limited partnership, Dartmouth Capital
Group, Inc., a Delaware corporation, Xxxxxx X. Xxxxxx and certain shareholders
of Dartmouth Capital Group, Inc. and other investors in Dartmouth Capital Group,
L.P., which agreement was subsequently amended by that certain Amended and
Restated Shareholder Agreement dated as of , 1999 (as so
amended, the "Shareholder Agreement"); and
WHEREAS, pursuant to the terms of the Shareholder Agreement, any
transfer of the Shares (including the transfer to Transferee) is subject the
terms of the Shareholder Agreement and, subject to certain conditions, conveys
to the transferee of the Shares certain of the rights attendant to the Shares.
NOW, THEREFORE, in consideration of Transferee's acquisition of the
Shares, and for other good and valuable consideration, the receipt and
sufficiency of each of which are hereby acknowledged, the Company and Transferee
hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined are used
with the meanings set forth in the Shareholder Agreement.
2. Transferee hereby makes, as of the date hereof, each of the
representations, warranties and covenants of a Shareholder contained in the
Shareholder Agreement as though the same were restated herein in their entirety.
3. Transferee agrees to be bound by and comply with all provisions of
the Shareholder Agreement constituting restrictions on or relating to the Shares
or the holder of the Shares, or with respect to the further Transfer of the
Shares, and agrees to be bound by and comply with all provisions of the
Shareholder Agreement granting rights to any other Person with regard to the
Shares thereby becoming a party to the Shareholder Agreement.
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4. Transferee hereby acknowledges that he or she has received and
reviewed a copy of the Shareholder Agreement, the Securities Purchase Agreement
and the exhibits thereto, is familiar with the contents thereof, and has been
afforded the opportunity to consult with counsel regarding the same prior to
executing this Affirmation Agreement.
5. This Affirmation Agreement shall be governed by the internal laws of
the State of Delaware without regard to the conflict of laws provisions thereof.
IN WITNESS WHEREOF, the parties have caused this Affirmation Agreement
to be duly executed as of the day and year first recited above.
ELDORADO BANCSHARES, INC.
By:
-------------------------------------
Its:
TRANSFEREE:
-------------------------------------
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