EXHIBIT 10.1
SHAREHOLDER AGREEMENT
(HARBOR BANCORP, INC.)
This Shareholder Agreement ("Shareholder Agreement"), dated as of June 9,
1999, is between HARBOR BANCORP, INC. ("Harbor"), and the undersigned, who are
Shareholders and Directors and/or Officers (the "Shareholders") of Harbor.
RECITALS
A. Harbor and Pacific Financial Corporation ("Pacific") have entered into an
Agreement and Plan of Merger (the "Agreement"), dated as of June 9, 1999,
under which all the outstanding shares of Pacific common stock will be
exchanged for common stock shares of Harbor (the "Merger").
B. The Shareholders beneficially own with power to vote or direct the voting
of the shares of Harbor Common stock identified on ANNEX I to this
Shareholder Agreement (such shares, together will all shares of Harbor
common stock subsequently acquired during the term of this Shareholder
Agreement, being referred to as the "Shares").
C. The obligation of Harbor and Pacific to consummate the transactions
contemplated by the Agreement are conditioned on their receipt of voting
agreements from all Shareholders of Pacific and Harbor.
AGREEMENT
In consideration of Pacific's and Harbor's performance under the Agreement,
the Shareholders agree as follows:
1. AGREEMENT TO VOTE SHARES. The Shareholders shall vote or cause to be
voted, or execute a written consent with respect to, the Shares in favor of
adoption and approval of the Agreement and the Merger and all transactions
relating thereto at every meeting of the shareholders of Harbor 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 to the Merger.
2. NO VOTING TRUSTS. The Shareholders agree that the Shareholders will
not, nor will the Shareholders permit any entity under the Shareholders' 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 Shareholder Agreement.
3. LIMITATION ON SALES. During the term of this Shareholder Agreement,
the Shareholders agree not to sell, assign, transfer, pledge, encumber or
otherwise dispose of any of the Shares.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. The Shareholders
represent and warrant as follows:
a. CAPACITY. The Shareholders have all requisite capacity and
authority to enter into and perform his or her obligations under this
Shareholder Agreement.
b. BINDING AGREEMENT. This Shareholder Agreement constitutes the
valid and legally binding obligation of the Shareholders, 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
Shareholder Agreement by the Shareholders do not, and the performance by
the Shareholders of his or her obligations hereunder and the consummation
by the Shareholders 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 the Shareholders are a party or by which the
Shareholders are bound, or any statute, rule or regulation to which the
Shareholders are subject.
d. OWNERSHIP OF SHARES. Annex I to this Shareholder Agreement
correctly sets forth, as of the date of this Shareholder Agreement, the
number of shares of Harbor Common Stock owned beneficially and of record by
the Shareholders. The Shareholders have good title to all of the Shares
indicated as owned by the Shareholders in the capacity set forth on
Annex I, and such Shares are so owned free and clear of any liens, security
interests, charges or other encumbrances.
5. TERM OF AGREEMENT; TERMINATION. The term of this Shareholder
Agreement shall commence on the date hereof and such term and this Shareholder
Agreement shall terminate upon the earlier to occur of (i) the Effective Time or
(ii) the date on which the Agreement is terminated 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 of this Shareholder Agreement prior to such
termination.
6. MISCELLANEOUS.
a. SEVERABILITY. If any provision of this Shareholder 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
Shareholder Agreement, shall not be affected.
b. CAPACITY. The covenants contained herein shall apply to the
Shareholders solely in his or her capacity as a shareholder of Harbor, and
no covenant contained herein shall apply to the Shareholders in his or her
capacity as a director of such 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. GOVERNING LAW. This Shareholder Agreement shall be deemed a
contract made under, and for all purposes shall be construed in accordance
with, the laws of the State of Washington.
e. REMEDIES. Any breach of this Shareholder Agreement entitles
Harbor and Pacific to injunctive relief and/or specific performance, as
well as any other legal or equitable remedies they may be entitled to.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
SIGNED as of June 9, 1999:
SHAREHOLDER:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ Van Dijk
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HARBOR BANCORP, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Executive Officer
ANNEX I
▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇ ▇. ▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇ ▇. ▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
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▇▇▇▇ VAN DIJK:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
---------------
▇▇▇▇▇ ▇▇▇▇:
Number of Shares of Pacific
Common Stock Beneficially Owned,
as of June 9, 1999 (including shares
issuable upon exercise of options or
warrants that are exercisable within
sixty (60) days of the date hereof):
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