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EXHIBIT 2.3
FORM OF VOTING
AGREEMENT
December 24, 1996
Commerce Security Bancorp, Inc.
One Pacific Plaza
7777 Center Avenue
Huntington Beach, CA 92647
Ladies and Gentlemen:
Substantially contemporaneously with the execution of this letter
agreement, Commerce Security Bancorp, Inc. ("CSBI") and Eldorado Bancorp
("Eldorado") are entering into an Agreement and Plan of Merger (the "Merger
Agreement") providing for the acquisition by CSBI of all of the outstanding
capital stock of Eldorado by means of a merger of a direct or indirect
subsidiary of CSBI (the "Merger Sub") with and into Eldorado. The undersigned
persons (each a "Shareholder") understand that CSBI has incurred, and will
continue to incur, substantial expenses in connection with the negotiation and
execution of the Merger Agreement and the subsequent actions necessary to
consummate the Merger. Capitalized terms not defined herein shall have the
meanings ascribed to those terms in the Merger Agreement.
In consideration of, and as a condition to, CSBI entering into the Merger
Agreement, and in consideration of the expenses incurred and to be incurred by
CSBI in connection therewith, and in consideration of the benefits to be derived
by the undersigned Shareholders by virtue of the consummation of the Merger,
each of the Shareholders severally, and not jointly, agrees with CSBI as
follows:
1. Each Shareholder represents and warrants that he or she owns as of the
date hereof beneficially, by reason of such Shareholder's power to vote such
Shares at Eldorado's Shareholders' Meeting in connection with the approval of
the Merger Agreement and the Merger, the number of shares ("Shares") of Eldorado
common stock ("Eldorado Common Stock") that is indicated opposite such
Shareholder's name on Appendix A attached hereto.
2. Effective on the execution and delivery by Eldorado of the Merger
Agreement and continuing until the earlier of (i) the termination of the Merger
Agreement in accordance with its terms and, if applicable, the payment of any
amounts required to be paid by Eldorado by the express terms of the Merger
Agreement in connection with such termination, or (ii) consummation of the
Merger (hereinafter, the "Term of the Merger Agreement"), each Shareholder
agrees to vote, or cause to be voted, at the Eldorado Shareholders' Meeting at
which Merger Agreement and Merger are to be voted on by Eldorado's Shareholders
(or by written consent if such Merger Agreement and Merger are to be acted on by
written consent of Eldorado's Shareholders, in lieu of a meeting of
Shareholders), all of such Shareholder's Shares and any shares of Eldorado
Common Stock the voting power of which is hereafter acquired during the Term of
the Merger Agreement by such Shareholder (a) for the approval of each
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aspect of the Merger Agreement and the Merger that requires the approval of the
shareholders of Eldorado, (b) against the approval of any Strategic Transaction
Proposal other than the Merger, and (c) in the manner specified in writing by
CSBI from time to time, but in any event not later than the tenth (10th)
business day prior to the scheduled vote, with respect to any other action or
proposal to be voted on by Eldorado's shareholders that would constitute a
breach of the Merger Agreement or otherwise would materially delay or hinder the
ability of Eldorado to consummate of the Merger.
3. Additionally, effective upon the commencement of the Term of the Merger
Agreement, each Shareholder hereby appoints CSBI and the proper officers of
CSBI, with full power of substitution in the premises, (i) its proxies to vote
all of his or her Shares and (ii) its true and lawful attorneys-in-fact to
execute one or more consents or other instruments from time to time (to the
extent permitted by law and Eldorado's articles of incorporation and by-laws)
during the Term of the Merger Agreement, in each case (x) for approval of the
Merger Agreement and Merger, (y) against any Strategic Transaction Proposal
other than the Merger, and (z) in any manner determined by CSBI with respect to
any other action or proposal that would constitute a breach of the Merger
Agreement or otherwise would materially delay or hinder Eldorado's ability to
consummate the Merger; provided, however, that if CSBI determines that any
matter to be voted on by the shareholders of Eldorado (or on which their consent
is being solicited) would constitute such a breach or have such an effect, then,
not later than the tenth (10th) business day prior to the vote of (or the date
on which written consents are required to be given by) the Eldorado shareholders
with respect thereto, CSBI shall provide written notice to the Shareholder of
such determination and whether and how it intends to vote the proxy given
hereunder with respect thereto. CSBI hereby confirms and agrees that the proxy
and power of attorney granted by each Shareholder to it under this Paragraph 3
does not confer on CSBI any right, power or authority, and that it will not use
or permit the use of any such proxy or power of attorney to call or attempt to
call a special meeting of shareholders of Eldorado for any purpose whatsoever or
to exercise any voting rights or power conferred hereby with respect to any
matter or for any purpose other than to vote on the matters set forth in clause
(x) (y) and (z) hereof. The proxy and power of attorney granted herein shall be
irrevocable during the Term of the Merger Agreement, and shall be deemed to be
coupled with an interest and shall revoke all prior proxies granted by
Shareholder until the conclusion of the Term of the Merger Agreement, at which
time such proxy and power of attorney shall automatically terminate and be of no
further force or effect. Shareholder shall not grant any proxy to any person
which conflicts with the proxy granted herein and any attempt to do so shall be
void.
4. Each Shareholder agrees that, during the Term of the Merger Agreement,
he or she shall, and shall instruct each of his or her representatives, agents,
advisors and affiliates to, cease and refrain from any activities, discussions,
negotiations or other actions with any parties other than CSBI with respect to
any Strategic Transaction (as defined in the Merger Agreement),
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except to the extent Eldorado would be permitted to engage in such activities,
discussions, negotiations or other actions pursuant to Section 5.1 or 5.2 of the
Merger Agreement.
5. Each Shareholder agrees during the Term of the Merger Agreement not to
sell, assign, transfer or otherwise dispose of (including, without limitation,
by the creation of a Lien (as defined in paragraph 7 below)), and shall use its
best efforts not to permit to be sold, assigned, transferred or otherwise
disposed of, any of his or her Shares, except any Shareholder may effectuate (a)
transfers by will or by operation of law (in which case this letter agreement
shall bind the transferee) or to an inter vivos family trust established for the
benefit of the members of his or her immediate family, provided the Shareholder
retains voting control over such Shares, and (b) transfers to any of the other
Shareholders or to any other Person who executes and delivers to CSBI a written
agreement or instrument by which such Person agrees to be bound by and to comply
with this Letter Agreement; provided, however, that no transfer shall be made
under this clause (b) to a Person who is not a director or executive officer of
Eldorado until after the distribution of the Proxy Statement soliciting proxies
with respect to the Merger.
6. CSBI and each of the Shareholders severally represent, as to himself or
hiself, that he, she or it has the complete and unrestricted power and the
unqualified right to enter into and perform the terms of this Letter Agreement,
subject only to the consensual rights of his or her spouse. CSBI and each of the
Shareholders further severally represents that this letter agreement constitutes
a valid and binding agreement with respect to such party, enforceable against
such party in accordance with its terms (subject, however, to equitable
principles). Each of the Shareholders severally represents that he or she, alone
or together with his or her spouse, has full and unrestricted voting power with
respect to his or her Shares, free and clear of any liens, claims, charges or
other encumbrances and restrictions of any kind whatsoever ("Liens"). EACH OF
THE SHAREHOLDERS FURTHER SEVERALLY REPRESENTS THAT SUCH SHAREHOLDER BEEN
PROVIDED AND HAS REVIEWED THE MERGER AGREEMENT (OR A SUBSTANTIALLY FINAL DRAFT
THEREOF) AND HAS BEEN AFFORDED THE OPPORTUNITY TO DISCUSS THE MATTERS CONTAINED
HEREIN WITH HIS OR HER ADVISORS.
7. Notwithstanding anything herein to the contrary, the agreements
contained, and the proxies and powers of attorney granted, herein are
irrevocable until and shall remain in full force and effect until the earliest
occurrence of a Termination Event (as hereafter defined), whereupon such
agreements and proxies and powers of attorney shall, without action or notice by
any party hereto, terminate and be of no further force or effect. As used
herein, the sole Termination Events shall consist of (a) the consummation of the
Merger, and (b) the termination of the Merger Agreement in accordance with
Article VII thereof together with, where applicable, the payment of any
Termination Fee or the reimbursement of any Expenses (each as defined in the
Merger Agreement) required to be paid or reimbursed by Eldorado pursuant to
Article VII thereof.
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8. Each of the Shareholders has signed this letter agreement intending to
be bound severally hereby as to his or her agreements and representations and
warranties herein and not to be bound as joint obligors, or with respect to any
agreements or representations or warranties herein of any other Shareholder.
Each Shareholder who has executed this letter agreement shall be bound hereby
whether or not any other Shareholder has also executed this letter agreement.
Each Shareholder who owns any Shares as community property with his or her
spouse represents that such spouse has executed a spousal consent to this letter
agreement.
9. The parties hereto agree that if any of the provisions of this letter
agreement were not performed in accordance with their specific terms or were
otherwise breached, irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine, and that the parties
shall (without posting of bond or other security) be entitled to obtain from any
court of competent jurisdiction specific performance of the terms hereof, in
addition to any other remedy at law or in equity. Notwithstanding the foregoing,
CSBI agrees that any shareholder who in fact causes his or her Shares to be
voted, or whose Shares are in fact voted, whether by such Shareholder or by his
or her proxy or attorney-in-fact (including CSBI or its designee as provided in
Section 3 above), in favor of the Merger and otherwise in the manner required by
Section 2 or Section 3 shall have no personal liability to CSBI or any other
person by virtue of this Letter Agreement. Nothing in this agreement, expressed
or implied, is intended to confer upon any party, other than the parties hereto
and their respective successors, except as assignees, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein to the contrary.
10. All costs and expenses incurred in connection with this Letter
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses, except as otherwise provided in the Merger Agreement or
in this Section 10. Notwithstanding the foregoing, if either party brings an
action to enforce or to determine the parties' rights under this Letter
Agreement, the prevailing party shall be entitled to recover its reasonable
legal fees and expenses and any related costs incurred by such party (including,
in the case of a Shareholder, by Eldorado on such Shareholder's behalf) in
connection with such action or proceeding.
11. This letter agreement is to be governed by the laws of the State of
California, without giving effect to the conflicts of laws principles thereof.
If any provision hereof is deemed unenforceable, the enforceability of the other
provisions hereof shall not be affected. This letter agreement may be signed in
any number of counterparts, and each counterpart shall be deemed an original and
all of such counterparts, when taken together, shall constitute one and the same
agreement.
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Commerce Security Bancorp, Inc.
December __, 1996
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Please confirm our agreement with you by signing a copy of this letter.
(Remainder of this page has been intentionally left blank,
Signature Pages immediately follow)
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Commerce Security Bancorp, Inc.
December __, 1996
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Very truly yours,
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J.B. Crowell Warren Finley
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Raymond E. Dellerba Warren Fix
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David R. Brown Julia Di Giovanni
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Michael B. Burns Richard Korsgaard
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Lynne Pierson Doti Donald E. Sodaro
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Rolf J. Engen George H. Wells
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AGREED TO AND ACCEPTED AS OF
THIS DAY OF DECEMBER, 1996
COMMERCE SECURITY BANCORP, INC.
By:
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Robert P. Keller, President & CEO
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CONSENT OF SPOUSE
The undersigned spouse of ____________________ ("Shareholder") hereby
consents and agrees to the terms and conditions of the foregoing letter
agreement as they pertain to Shareholder.
________________________________
Print name:______________________
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APPENDIX A
to
Letter Agreement dated as of December , 1996