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EXHIBIT 99.3
EXHIBIT D
SHAREHOLDER'S AGREEMENT
This SHAREHOLDER'S AGREEMENT (this "Agreement"), dated as of February
24, 1997, is entered into among Bancorp Hawaii, Inc., a Hawaii corporation
("BHI"), ________________________________________________________ (the
"Shareholder"), and CU Bancorp, a California corporation ("CU").
RECITALS
A. BHI and CU entered into that certain Agreement and Plan of
Reorganization dated as of February 24, 1997 (the "Reorganization Agreement").
B. The Shareholder is a beneficial shareholder of shares of common
stock, no par value, of CU (the "CU Stock").
C. The Shareholder is a director of CU.
D. Unless otherwise provided in this Agreement, capitalized terms shall
have the meanings ascribed to such terms in the Reorganization Agreement.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties and covenants, agreements and conditions contained
herein and in the Reorganization Agreement, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
SHAREHOLDER'S AGREEMENT
1.1 Agreement to Vote. At any meeting of shareholders of CU to approve
the Reorganization Agreement, the Merger and the transactions contemplated
thereby (the "CU Shareholders' Meeting"), Shareholder shall vote or cause to be
voted in favor of, and to approve, the Reorganization Agreement, the Merger and
the transactions contemplated thereby, all of the
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shares of CU Stock as to which Shareholder has sole or shared voting power (the
"Shares"). Shareholder further agrees to vote or cause to be voted all the
Shares, except with the prior written consent of BHI, against the following
actions (other than the Merger and the transactions contemplated by the
Reorganization Agreement): (a) any extraordinary corporate transactions, such as
a merger, consolidation or other business combination involving CU or its
subsidiaries; (b) any sale, lease or transfer of a material amount of the assets
of CU or its subsidiaries; (c) any change in the majority of the board of
directors of CU; (d) any material change in the present capitalization of CU;
(e) any amendment of CU's Articles of Incorporation; (f) any other material
change in CU's corporate structure or business; or (g) any other action which is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or materially adversely affect the contemplated economic
benefits to BHI of the Merger or the transactions contemplated by the
Reorganization Agreement or the CU Stock Option Agreement.
1.2 Legend. The Shareholder agrees that the following legend may be
stamped, printed or typed on the face of his certificates of CU Stock evidencing
the Shares:
"THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
ENCUMBRANCE OR DISPOSITION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO A SHAREHOLDER'S AGREEMENT DATED AS OF THE
24TH DAY OF FEBRUARY, 1997 BY AND BETWEEN BANCORP HAWAII, INC. AND (THE
RECORD OWNER HEREOF), COPIES OF WHICH ARE ON FILE AT THE OFFICES OF
BANCORP HAWAII, INC."
CU agrees to issue stop transfer instructions to CU's transfer agent with
respect to Shareholder's CU Stock, to maintain such instructions in effect until
termination of this Agreement, and to use its reasonable best efforts to prevent
a transfer of Shareholder's CU Stock contrary to the terms of this Agreement.
1.3 Restrictions on Dispositions. The Shareholder agrees that, from and
after the date of this Agreement and during the term of this Agreement, the
Shareholder will not take any action that will alter or affect in any way the
right to vote the Shares, except (i) with the prior written consent of BHI or
(ii) to change such right from that of a shared right of the Shareholder to vote
the Shares to a sole right of the Shareholder to vote the Shares. The
Shareholder agrees that he will not pledge or otherwise encumber, nor sell,
assign, transfer or otherwise dispose of or reduce his risk of ownership or
investment in, any of the Shares currently owned or acquired by such Shareholder
after the date of this Agreement, except (i) with the prior written consent of
BHI (which shall not be unreasonably withheld); (ii) pursuant to the Merger; or
(iii) for any Shares
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acquired by Shareholder after the record date for the CU Shareholders' Meeting
upon exercise of options presently held by Shareholder.
1.4 Cooperation. Shareholder agrees that he/she will not directly or
indirectly solicit any inquiries or proposals from any person relating to any
proposal or transaction for the disposition of the business or assets of CU or
any of its subsidiaries, or the acquisition of voting securities of CU or any
subsidiary of CU or any business combination between CU or any subsidiary of CU
and any person other than BHI.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
The Shareholder represents and warrants to BHI that the statements set
forth below are true and correct as of the date of this Agreement, except those
that are specifically as of a different date:
2.1 Ownership and Related Matters.
(a) Schedule 2.1(a) hereto correctly sets forth the number of Shares
beneficially owned by Shareholder and the nature of Shareholder's voting power
with respect thereto. The Shareholder has good title to all of the Shares
indicated as owned by such Shareholder in the capacity set forth on Schedule
2.1(a), and such Shares are so owned free and clear of any liens, security
interest, charges or other encumbrances, except as set forth in such Schedule
2.1(a). Within five Business Days after the record date for the CU Shareholder's
Meeting (the "Record Date"), the Shareholder shall amend said Schedule 2.1(a) to
correctly reflect the number of Shares and the nature of Shareholder's voting
power with respect thereto as of the Record Date.
(b) There are no proxies, voting trusts or other agreements or
understandings to or by which the Shareholder or the Shareholder's spouse is a
party or bound or that expressly requires that any of the Shares be voted in any
specific manner other than as provided in this Agreement.
2.2 Authorization and Binding Agreement. The Shareholder has the legal
right, power, capacity and authority to execute, deliver and perform this
Agreement, and this Agreement is the valid and binding obligation of the
Shareholder enforceable in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity.
2.3 Non-contravention. The execution, delivery and performance of this
Agreement by the Shareholder will not (a) conflict with or result in the breach
of, or default or actual or potential
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loss of any benefit under, any provision of any agreement, instrument or
obligation to which the Shareholder or the Shareholder's spouse is a party or by
which any of Shareholder's properties or the Shareholder's spouse's properties
are bound, or give any other party to any such agreement, instrument or
obligation a right to terminate or modify any term thereof; (b) require the
consent or approval of any third party; (c) result in the creation or imposition
of any lien, mortgage or encumbrance on any of the Shares or any other assets of
the Shareholder or the Shareholder's spouse; or (d) violate any law, rule or
regulation to which the Shareholder or the Shareholder's spouse is subject.
ARTICLE III
GENERAL
3.1 Amendments. To the fullest extent permitted by law, this Agreement
and any schedule or exhibit attached hereto may be amended by agreement in
writing of the parties hereto at any time.
3.2 Integration. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and (except for
other documents to be executed pursuant to the Reorganization Agreement)
supersedes all prior agreements and understandings of the parties in connection
therewith.
3.3 Specific Performance. The Shareholder and BHI each expressly
acknowledge that, in view of the uniqueness of the obligations of the
Shareholder contemplated hereby, BHI would not have an adequate remedy at law
for money damages in the event that this Agreement has not been performed by the
Shareholder in accordance with its terms, and therefore the Shareholder and BHI
agree that BHI shall be entitled to specific enforcement of the terms hereof in
addition to any other remedy to which it may be entitled at law or in equity.
3.4 Termination. This Agreement shall terminate automatically without
further action at the earlier of the Effective Time of the Merger (as defined in
the Reorganization Agreement) or the termination of the Reorganization Agreement
in accordance with its terms (except that the obligation set forth in clause (g)
of the last sentence of Section 1.1 shall survive until the CU Stock Option
Agreement has terminated or been fully performed). Upon such termination of this
Agreement, the respective obligations of the parties hereto shall immediately
become void and have no further force and effect.
3.5 No Assignment. Neither this Agreement nor any rights, duties or
obligations hereunder shall be assignable by BHI or the Shareholder, in whole or
in part. Any attempted assignment in
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violation of this prohibition shall be null and void. Subject to the foregoing,
all of the terms and provisions hereof shall be binding upon, and inure to the
benefit of, the successors of the parties hereto.
3.6 Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
3.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to each party hereto.
3.8 Notices. Any notice or communication required or permitted
hereunder, shall be deemed to have been given if in writing and (a) delivered in
person, (b) delivered by confirmed facsimile transmission (c) sent by overnight
carrier, postage prepaid with return receipt requested or (d) mailed by
certified or registered mail, postage prepaid with return receipt requested,
addressed as follows:
If to BHI, addressed to:
Bancorp Hawaii, Inc.
111 S. King Street
Honolulu, HI 96813
Attn: David A. Houle
Fax. No. (808) 537-8637
With a copy addressed to:
Carlsmith Ball Wichman Case & Ichiki
2200 Pacific Tower
1001 Bishop Street
Honolulu, HI 96813
Attn: J. Thomas Van Winkle, Esq.
Fax. No. (808) 523-0842
If to Shareholder, addressed to:
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With a copy addressed to:
CU Bancorp
16030 Ventura Blvd.
Encino, CA 91436
Attn: Anita Y. Wolman, Esq.
Fax No. (818) 907-5024
or at such other address and to the attention of such other person as a party
may notice to the others in accordance with this Section 3.8. Any such notice or
communication shall be deemed received on the date delivered personally or
delivered by confirmed facsimile transmission, on the first Business Day after
it was sent by overnight carrier, postage prepaid with return receipt requested
or on the fourth Business Day after it was sent by certified or registered mail,
postage prepaid with return receipt requested.
3.9 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts between California parties made and
performed in such State.
3.10 Severability and the Like. If any provision of this Agreement
shall be held by a court of competent jurisdiction to be unreasonable as to
duration, activity or subject, it shall be deemed to extend only over the
maximum duration, range of activities or subjects as to which such provision
shall be valid and enforceable under applicable law. If any provisions shall,
for any reason, be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
3.11 Expenses. Each party hereto shall pay its own costs and expenses,
including, but not limited to, those of its attorneys and accountants, in
connection with this Agreement and transactions covered and contemplated hereby.
3.12 Waiver of Breach. Any failure or delay by BHI in enforcing any
provision of his Agreement shall not operate as a waiver thereof. The waiver by
BHI of a breach of any provision of this Agreement by the Shareholder shall not
operate or be construed as a waiver of any
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subsequent breach or violation thereof. All waivers shall be in writing and
signed by the party to be bound.
3.13 Attorneys' Fees. In the event either of the parties to this
Agreement brings an action or suit against any other party by reason of any
breach of any covenant, agreement, representation, warranty or other provision
hereof, or any breach by such other party of any duty or obligation created
hereunder, the prevailing party in whose favor final judgment is entered shall
be entitled to have and recover of and from the losing party all reasonable
costs and expenses incurred or sustained by such prevailing party in connection
with such suit or action, including without limitation, legal fees and court
costs (whether or not taxable as such).
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3.14 JURY WAIVER. THE PARTIES HERETO AGREE TO WAIVE TRIAL BY JURY IN
ANY DISPUTE OVER THIS AGREEMENT OR RELATED THERETO IN ANY MANNER.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
this Agreement as of the day and year first above written.
BANCORP HAWAII, INC. CU BANCORP
By: By:
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Title: General Counsel Title:
By:
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Title:
SHAREHOLDER
Name:
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SPOUSAL CONSENT
I am the spouse of the Shareholder in the above Agreement. I understand
that I may consult independent legal counsel as to the effect of this Agreement
and the consequences of my execution of this Agreement and, to the extent I felt
it necessary, I have discussed it with legal counsel. I hereby confirm this
Agreement and agree that it shall bind my interest in the Shares, if any.
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(Shareholder's Spouse's Name)
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SCHEDULE 2.1(a) TO SHAREHOLDER'S AGREEMENT
Dated _______________ , 1997
___________________
Name of Shareholder
Shares Held as of ____________
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Number of Shares of CU Common
Stock as to which the Shareholder
had sole or shared voting or
dispositive power as of the above
date including the number of
shares which such person had the Common Shares Issuable Upon Total Common
right to acquire as of such date Owned Conversion Equivalent
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