Exhibit 10.2
SHAREHOLDER
AGREEMENT
This Shareholder Agreement (this
“ Agreement ”) is made and entered into
this day of
,
2009, by and between 1st Pacific Bancorp, a California corporation
(“ 1st Pacific Bancorp ”) and 1st Pacific
Bank of California, a California state-chartered bank and the
wholly-owned subsidiary of 1st Pacific Bancorp (“ 1st
Pacific Bank, ” and together with 1st Pacific
Bancorp, “ 1st Pacific ”) on the one
hand, and Ernest Auerbach, an individual (“
Shareholder ”) on the other hand, with
reference to the following facts:
RECITALS
A.
Shareholder has agreed to and
intends to purchase approximately fifteen million dollars
($15,000,000) of shares of the no par value common stock of FB
Bancorp (the “ Stock Purchase ”) and has
deposited the funds required for the Stock Purchase into First
Business Bank, National Association, a national banking association
(“ First Business Bank ”).
B.
First Business Bank, FB Bancorp, a
California corporation (“ FB Bancorp ”),
1st Pacific Bancorp and 1st Pacific Bank have entered into that
certain Agreement and Plan of Merger dated as of this date (the
“ Reorganization Agreement ”), pursuant
to which: (i) FB Bancorp and First Business Bank will
reorganize and FB Bancorp will become the bank holding company for
First Business Bank (the “ Bank Holding Company
Formation ”); (ii) immediately thereafter, FB
Bancorp will cause the merger of a wholly-owned merger subsidiary
with and into 1st Pacific Bancorp (the “ Merger
”), with 1st Pacific Bancorp as the resultant or surviving
corporation in the Merger (the “ Surviving
Corporation ”); (iii) immediately thereafter,
the Surviving Corporation will merge with FB Bancorp (the “
Bank Holding Company Merger ”) with the
Surviving Corporation as the resultant or surviving bank holding
company (the “ Surviving Bank Holding Company
”) for First Business Bank and 1st Pacific Bank; and
(iv) immediately thereafter, the Surviving Bank Holding
Company will cause the merger of First Business Bank with 1st
Pacific Bank (the “ Bank Merger ”) with
1st Pacific Bank as the resultant or surviving bank in the Bank
Merger (the “ Surviving Bank
”).
C.
Shareholder is the largest
shareholder in each of First Business Bank and FB Bancorp and will
benefit significantly from the Reorganization Agreement and the
transactions contemplated thereby.
D.
As a condition to its willingness to
enter into the Reorganization Agreement, and in reliance on
Shareholder’s representations, warranties, covenants and
agreements hereunder, 1st Pacific has requested that Shareholder
agree, and Shareholder has agreed, to enter into this Agreement and
to perform Shareholder’s duties and obligations
hereunder.
NOW, THEREFORE, in consideration of
the promises and of the representations, warranties and covenants,
agreements and conditions contained herein and in the
Reorganization Agreement, the parties hereto agree as
follows:
1
AGREEMENT
1.
AGREEMENTS OF
SHAREHOLDER
1.1.
Agreement to Vote
. At any meeting of
shareholders of First Business Bank and/or FB Bancorp to approve
the Stock Purchase, the Merger, the Reorganization Agreement and
the transactions contemplated thereby, Shareholder shall vote or
cause to be voted all shares of: (i) common stock of FB
Bancorp, no par value per share (“ FB Bancorp
Stock ”) and (ii) common stock of First Business
Bank, $5.00 par value per share (“ First Business Bank
Common Stock ” and together with FB Bancorp Stock,
“ FBB Stock ”), owned by Shareholder and
any other shares of FBB Stock hereafter acquired by Shareholder in
favor of, and to approve, the principal terms of the Stock
Purchase, Bank Holding Company Formation, Merger and any other
matter contemplated by the Reorganization Agreement which requires
the approval of the shareholders of First Business Bank and/or FB
Bancorp.
1.2.
Restrictions on
Dispositions .
Shareholder agrees that, except with the prior written consent of
1st Pacific Bancorp, which may be withheld in its sole and absolute
discretion, Shareholder will not pledge nor otherwise encumber,
sell, assign or otherwise dispose of any shares of FBB Stock
currently owned or acquired by Shareholder after the date of this
Agreement.
1.3.
Cooperation
. Shareholder agrees to
cooperate fully with 1st Pacific in connection with the Bank
Holding Company Formation and the Stock Purchase, including
providing all information reasonably requested by the regulatory
authorities on a timely basis in connection with
Shareholder’s applications for approval as the controlling
shareholder of the Surviving Bank Holding Company.
1.4.
Covenant to Elect Former 1st
Pacific Directors .
Pursuant to Section 2.4 of the Reorganization Agreement, two
board members of 1st Pacific Bancorp immediately prior to the
effective time of the Merger (“ 1st Pacific
Directors ”) will be invited to join the board of
directors of Surviving Corporation, which shall become the
directors of Surviving Bank Holding Company. Shareholder
agrees to vote, or cause to be voted, all shares of FBB Stock owned
by Shareholder and any other shares of FBB Stock hereafter acquired
by Shareholder, from time to time and at all times, in whatever
manner as shall be necessary to ensure that at each annual or
special meeting of shareholders at which an election of directors
is held or pursuant to any written consent of the shareholders, the
1st Pacific Directors shall be elected to the board of directors of
Surviving Corporation and Surviving Bank Holding Company; provided
however, that such obligation shall only apply if the 1st Pacific
Directors are nominated for re-election by the Surviving
Corporation’s board of directors and they consent to serve;
and provided further, that such obligation shall terminate upon the
expiration of the Earn Out Period (as defined in the Reorganization
Agreement).
1.5.
Reasonable
Restrictions .
Shareholder agrees to accept all reasonable regulatory restrictions
imposed by any Federal or state banking regulator including, but
not limited to, the Office of the Comptroller of the Currency, the
Federal Deposit Insurance Corporation, the Board of Governors of
the Federal Reserve System and the California Department of
Financial Institutions, which regulates 1st Pacific Bank or First
Business Bank, or any of their respective holding companies or
subsidiaries, as the case may be, in connection with the Stock
Purchase and the Holding Company Formation; provided, however,
Shareholder shall not be obligated to
2
consummate the Stock Purchase or the Bank
Holding Company Formation to the extent that Shareholder reasonably
determines, in good faith, that any one or more restrictions,
individually or when aggregated, as in effect or to be in effect as
of the closing of the Bank Holding Company Merger, with respect to
Shareholder would be material and adverse to Shareholder’s
financial condition or business plans, it being understood and
agreed that any regulatory requirement to increase
Shareholder’s financial commitment to the consummation of the
Bank Holding Company Formation and Stock Purchase beyond fifteen
million dollars ($15,000,000) shall be deemed material and adverse
to Shareholder.
1.6.
General Conduct
. During the period from the
date of this Agreement to the Effective Time (as defined in the
Reorganization Agreement), except with the written consent of 1st
Pacific Bancorp and 1st Pacific Bank, which may be withheld in
their sole and absolute discretion, Shareholder will not
voluntarily take any action that would: (i) adversely affect
the ability of Shareholder, First Business Bank or FB Bancorp to
obtain the Regulatory Approvals (as defined in the Reorganization
Agreement) or materially increase the period of time necessary
t
