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EXHIBIT 99.1
SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT ("Agreement") is made as of May , 1995, by and
between ELDORADO BANCORP, a California corporation ("Eldorado") and the other
persons executing the last page of this Agreement, who are shareholders of
Mariners Bancorp (the "Shareholders"). All terms not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement (as
that term is defined below).
A. Eldorado and Mariners, a California corporation ("Mariners"), are
planning to enter into an Agreement and Plan of Reorganization and Merger (the
"Merger Agreement"), to be dated as of the date hereof. The Merger Agreement
provides for a statutory merger (the "Merger") pursuant to which Mariners will
be merged with and into Eldorado Bank, which is a wholly-owned subsidiary of
Eldorado, the separate existence of Mariners will terminate and the shareholders
of Mariners will receive, in exchange for their shares of Mariners Common Stock,
a combination of shares of common stock of Eldorado and cash, all as more fully
set forth in the Merger Agreement.
B. In order to induce Eldorado and Eldorado Bank ("EB") to enter into the
Merger Agreement, and as consideration therefor, the Shareholders, solely in
their capacity as shareholders, desires to take certain actions and to refrain
from taking other actions in connection with the Merger.
NOW, THEREFORE, in consideration of these premises and of the
representations, warranties, covenants, and agreements contained in this
Agreement and in the Merger Agreement, the parties agree as follows:
1. Agreements of the Shareholders.
1.1 Agreement to Vote. At any meeting of shareholders of Mariners to
be held to vote on approval of, or in connection with any solicitation of
Mariners shareholders for written consents to, the Merger or any of the
transactions contemplated thereby, the Shareholders agree, jointly and
severally, that they will vote or cause to be voted (or, in the case of a
solicitation of written consents, to give their written consents with
respect to) all shares of common stock of Mariners ("Mariners Stock") that
the Shareholders own, either individually or jointly, or hereafter acquire,
or over which either or both of the Shareholders exercise or hereafter
acquire the right to exercise voting power (the "Shareholders' Mariners
Stock"), in favor of and to approve the Merger, on the terms provided in
the Merger Agreement, the consummation of the transactions contemplated
thereby and any other matters provided in the Merger Agreement that require
the approval of the shareholders of Mariners.
1.2 Restrictions on Dispositions. The Shareholders agree that until
the earliest of (i) the adjournment of the meeting of shareholders called
to vote on approval of the Merger, (ii) the termination of the Merger
Agreement in accordance with the terms thereof and prior to and without the
consummation of the Merger, or (iii) March 31, 1996, the Shareholders shall
not sell, assign or otherwise dispose of any shares of the Shareholders'
Mariners Stock (except pursuant to the Merger or as provided below) or
relinquish, assign or otherwise transfer any of their rights to vote, or
grant consents with respect to, such shares of Shareholder's Mariners
Stock, or enter into any agreement to do any of the foregoing other than
with Eldorado or an affiliate of Eldorado or with the prior written consent
of Eldorado, unless (i) notwithstanding the sale of other transfer or
disposition of any such shares, the Shareholders shall have retained full
voting power with respect to such shares, including the sole right to vote
and grant consents with respect to such shares in accordance with
Subsection 1.1 hereof, or (ii) the person to whom such shares shall have
been sold, assigned or otherwise transferred or disposed of shall have
agreed, in writing, to be bound by the provisions of this Agreement, or
(iii) the transfer is involuntary, such as a transfer on death or by one of
the Shareholders to the other Shareholder; and except that the Shareholders
may grant a written proxy to vote any or all of such shares to a
proxyholder under irrevocable instructions requiring such proxyholder to
vote all of such shares at any meeting held or pursuant to any written
consent solicited to vote on approval of the Merger and the transactions
contemplated thereby in accordance with the requirements of Subsection 1.1
hereof.
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1.3 Cooperation. At all times during which the Shareholders'
agreements contained in Subsections 1.1 or 1.2 above are in effect, the
Shareholders agree not to directly or indirectly solicit or initiate any
inquiries, proposals or offers from any person or entity (other than from
Eldorado or any affiliate of Eldorado) relating to, any proposal or
transaction for disposition of the business or assets of Mariners or any of
its Subsidiaries, the acquisition or sale of securities of Mariners or any
Subsidiary of Mariners, or any other transaction or proposal that comes
within the definition of "Acquisition Transaction" or the definition of
"Acquisition Proposal" as such terms are defined in the Merger Agreement.
The Shareholders shall recommend to other shareholders of Mariners that
they vote in favor of and to approve the Merger, on the terms provided in
the Merger Agreement, the consummation of the transactions contemplated
thereby and any other matters provided in the Merger Agreement that require
the approval of the shareholders of Mariners, and the Shareholders shall
not revoke such recommendation.
2. Representations and Warranties of the Shareholders.
Each of the Shareholders represents and warrants to Eldorado as follows:
2.1 Capacity. Such Shareholder has the requisite capacity and
authority to enter into and perform such Shareholder's obligations under
this Agreement.
2.2 Binding Agreement. This Agreement constitutes the valid and
legally binding obligation of such Shareholder which is enforceable against
such Shareholder in accordance with its terms and shall be binding on his
or her heirs, representatives, executors and successors and assigns and
shall inure to Eldorado and its successors and assigns.
2.3 Noncontravention. The execution and delivery of this Agreement by
such Shareholder does not, and the performance by such Shareholder of the
Shareholder's obligations under this Agreement and the consummation by such
Shareholder of the transactions contemplated by this Agreement will not in
any material respect violate or conflict with, nor shall such execution and
delivery or performance constitute a material default under, any agreement,
instrument, contract or other obligation, or any order, arbitration award,
judgment or decree to which such Shareholder is a party or by which such
Shareholder or any of his or her shares of Mariners Stock is bound or
subject, or any statute, rule or regulation to which such Shareholder or
any of the Shareholder's property, including his or her shares of Mariners
Stock, is subject. Attached hereto are copies of any voting trust or other
agreements governing the transferability or other disposition, or the
voting, of any of the shares of the Shareholders' Mariners Stock.
2.4 Ownership of and Voting Power of Shares. Schedule A to this
Agreement correctly set forth (i) the number of shares of Mariners Stock
owned by the Shareholders with respect to which the Shareholders, either
individually or jointly, have sole voting and dispositive power, (ii) the
number of shares of Mariners Stock, if any, owned by others over which
either of the Shareholders holds the full power to vote. Schedule A also
sets the number of shares of Mariners Stock, if any, that is owned by
either or both of the Shareholders but as to which voting power is held by
or shared with any third person or entity and the identity of such person
and shares of Mariners Stock held by either Shareholder in a representative
or fiduciary capacity (that is, for example, as a trustee, executor, or
corporate officer or agent or as a partner of a partnership that is the
beneficial owner of the shares).
3. Enforcement.
3.1 Damages Inadequate; Specific Performance. In the event of a
threatened or actual breach of this Agreement by either of the
Shareholders, it is agreed that damages would not be an adequate remedy to
compensate Eldorado. Accordingly, each party agrees that each Shareholder's
obligations will be enforceable by court order requiring specific
performance without proof of damages or posting of any bond. In the event
of a threatened or actual breach of this Agreement by the Shareholder,
Eldorado will be entitled to a temporary restraining order and to temporary
and permanent injunctive relief to prevent or terminate such threatened or
actual breach, provided that nothing in this Agreement shall be construed
to limit the damages otherwise recoverable by Eldorado in any such event.
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3.2 Notice to Third Parties. Within days of the date hereof, the
Shareholders shall cause to be delivered to Mariners all stock certificates
evidencing the Shareholders' shares of Mariners Stock and Mariners shall
cause the following legend to be endorsed thereon:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A SHAREHOLDER
AGREEMENT DATED MAY , 1995, BETWEEN THE HOLDER(S) HEREOF AND ELDORADO
BANCORP WHICH RESTRICTS IN CERTAIN RESPECTS THE VOTING OF SUCH SHARES
AND SALES, TRANSFERS OR OTHER DISPOSITIONS OF SUCH SHARES IN THE ABSENCE
OF AN AGREEMENT, IN WRITING, BY THE TRANSFEREE TO COMPLY WITH SUCH
SHAREHOLDER AGREEMENT."
In addition, after notice to the Shareholders, Eldorado will have the right
to inform any person or entity that Eldorado reasonably believes to be, or
to be contemplating, participating with either Shareholder (or receiving
assistance from either Shareholder) in violation of this Agreement, that
any participation with either Shareholder in activities in violation of
this Agreement may give rise to claims by Eldorado against such entity or
person.
4. Miscellaneous.
4.1 Expenses. Each party will pay that party's costs and expenses,
including attorneys and accounting fees, in connection with this Agreement
and the transactions contemplated by this Agreement.
4.2 Notices. All notices and other communications hereunder shall be
in writing and, if delivered personally, mailed by registered or certified
mail (return receipt requested), sent by confirmed overnight courier or
telecopied (with electronic confirmation and verbal confirmation of the
person to whom such telecopy is addressed), shall be deemed to have been
given on the date actually delivered or three days following the date
mailed, as the case may be, to the parties at the following addresses: If
to Eldorado:
Eldorado Bancorp
c/o Eldorado Bank Administration
19100 Von Karman Avenue, Suite 550
Irvine, California 92713
Attention: Chief Executive Officer
If to the Shareholders:
To their address as maintained on the books and records of
Mariners;
or to such other address as a party may have furnished to the other in
writing in accordance with this paragraph, except that notices of change of
address shall only be effective upon receipt.
4.3 Assignment; Third Party Beneficiaries. This Agreement is not
assignable by any party hereto, except with the prior consent of the other
parties. Each party intends that this Agreement shall not benefit, or
create any right or cause of action in or on behalf of, any person other
than the parties, except for EB, which is an intended third party
beneficiary of the agreements and representations and warranties of the
Shareholders contained in this Agreement. As used in this Agreement, the
term party or parties shall refer only to Eldorado and the Shareholders.
4.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
An executed counterpart received by telecopy shall have the same effect as
an originally-executed counterpart.
4.5 Governing Law. This Agreement will be governed by California law,
without regard to any applicable principles of conflicts of law.
4.6 Captions. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
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4.7 Waiver and Modification. No waiver of any term, provision or
condition of this Agreement, whether by conduct or otherwise, shall be
deemed to be a further or continuing waiver of any such term, provision or
condition. This Agreement may be modified or amended only by an instrument
signed by the parties.
4.8 Attorney Fees. If any party brings an action or suit, at law or
in equity, against any other party by reason of such party's breach of any
covenant, representation, warranty or other provision of this Agreement,
the prevailing party in whose favor final judgment is entered shall be
entitled to recover from the losing party all reasonable costs and expenses
incurred by the prevailing party in connection with such suit or action,
including legal fees and court costs (whether or not taxable as such).
4.9 Entire Agreement. This Agreement embodies the entire
understanding of the parties with respect to its subject matter, and there
are no other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter of this Agreement,
unless expressly referred to in this Agreement.
4.10 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid under
applicable law. However, if any provision shall be invalid or
unenforceable, it shall be construed and limited to effectuate its purpose
to the maximum legally permissible extent. If it cannot be so construed so
as to be valid under such law, such provision shall be ineffective to the
extent of such invalidity or prohibition without invalidating the remainder
of such provision or the remaining provisions of this Agreement, and this
Agreement shall be construed to the maximum extent possible to carry out
its terms without such invalid or unenforceable provision or portion.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SHAREHOLDERS: ELDORADO BANCORP
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Its: -------------------------------------
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MARINERS BANCORP*
By:
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Its:
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* Mariners is executing this Agreement only
with respect to Section 3.2 of this
Agreement.
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SCHEDULE A
Names of Shareholders:
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Number of Shares of Mariners Stock:
(1) which are owned by Shareholders and as to which
they have the sole right to exercise voting power: ---------------------
(2) which are NOT owned by either Shareholder, but as
to which either of them has the sole right to
exercise voting power: ---------------------
(3) which are owned by Shareholders, but as to which
another Person has the right to exercise voting
power ---------------------
(4) as to which the voting power is shared with another
Person ---------------------
Identities of Persons who hold or share voting power with respect to any shares
of Mariners Stock that are owned by Shareholder:
NAME NUMBER OF SHARES
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List of Agreements to which any of the Shareholder's shares of Mariners Stock
are subject or bound, true and correct copies of which are attached: