This Voting Agreement involves
Title: EXHIBIT A-1 VOTING AND NON-COMPETITION AGREEMENT
Industry: Regional Banks Sector: Financial
VOTING AND NON-COMPETITION AGREEMENT
This Voting and Non-Competition Agreement (this “ Agreement ”) is entered into as of this 26th day of April, 2016, by and between Pacific Continental Corporation, an Oregon corporation (“ PCC ”) and the undersigned [officer/director] (the “[ Officer/Director ]”) of Foundation Bancorp, Inc., a Washington corporation (“ Foundation Bancorp ”), and Foundation Bank, a Washington state-chartered bank (the “ Bank ”).
A. Effective as of the date of this Agreement, Foundation Bancorp, the Bank, PCC and Pacific Continental Bank, an Oregon state-chartered bank (“ PCB ”), have entered into an Agreement and Plan of Merger (as the same may be amended from time to time, the “ Merger Agreement ”), pursuant to which PCC would acquire Foundation Bancorp by means of a merger of Foundation Bancorp with and into PCC (the “ Merger ”) on the terms and subject to the conditions set forth in such Merger Agreement.
B. Immediately following the Merger, PCC intends that the Bank shall be merged with and into PCB (the “ Bank Merger ” and, together with the Merger, the “ Mergers ”), with PCB the resulting bank.
C. [Officer/Director] is an [officer/director] of Foundation Bancorp and the Bank and, following the Effective Time, will no longer hold such position.
D. As a result of [Officer’s/Director’s] holding of such position, he or she is aware of confidential and proprietary business information of Foundation Bancorp and the Bank.
E. The parties hereto recognize and acknowledge the interest of PCC in protecting the business and goodwill associated with Foundation Bancorp and the Bank, and the confidential and proprietary information of Foundation Bancorp and the Bank following the Merger, by having [Officer/Director] enter into this Agreement.
F. As a condition to its willingness to enter into the Merger Agreement, PCC has required that [Officer/Director], and [Officer/Director] is willing to, execute and deliver this Agreement.
In consideration of the mutual premises, and of the representations and warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereby enter into this Agreement and agree as follows:
For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
This Agreement will become legally effective and binding on the date first set forth above and end on the second anniversary of the date of the consummation of the Merger (the “ Term ”). Notwithstanding the foregoing, in the event that the Merger Agreement is terminated for any reason in accordance with its terms, without the Merger having been consummated, or a change of recommendation of the Foundation Bancorp Board to approve the Merger pursuant to Section 6.5 of the Merger Agreement, this Agreement shall be deemed null and void.
[Officer/Director] Representations and Warranties.
(a) (i) [Officer/Director] owns beneficially (as such term is defined in Rule 13d-3 under the Exchange Act) all of the shares of common stock, $1.00 par value, of Foundation Bancorp (“ Foundation Bancorp Common Stock ”) and Foundation Bancorp Restricted Stock set forth on Schedule A hereto (the “ Original Shares ” and, together with any additional shares of Foundation Bancorp Common Stock and Foundation Bancorp Restricted Stock pursuant to Section 7(c) hereof, the “ Shares ”) and has good and valuable title thereto free and clear of all Liens (other than restrictions on transfer under applicable securities laws), and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which [Officer/Director] is a party relating to the pledge, disposition or voting of any of the Original Shares, and there are no voting trusts or similar agreements with respect to the Original Shares restricting or otherwise relating to the voting of such Shares.
(b) [Officer/Director] does not beneficially own any shares of capital stock or voting securities of Foundation Bancorp or securities of Foundation Bancorp convertible into or exchangeable for shares of capital stock or voting securities of Foundation Bancorp other than (i) the Original Shares and (ii) the shares of Foundation Bancorp Restricted Stock acquired pursuant to the Foundation Bancorp Stock Plan set forth on Schedule A hereto.
(c) [Officer/Director] has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws, community property laws and the terms of this Agreement.
(d) [Officer/Director] has all requisite power, authority and legal capacity to execute and deliver this Agreement and to perform his or her obligations hereunder. The execution, delivery and performance of this Agreement by the [Officer/Director] hereunder and the consummation by such [Officer/Director] of the transactions contemplated hereby have been duly and validly authorized by such [Officer/Director]. This Agreement has been duly and validly executed and delivered by such [Officer/Director] and, assuming due authorization, execution and delivery by PCC, constitutes a legal, valid and binding obligation of the [Officer/Director], enforceable against such [Officer/Director] in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally.
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not (1) constitute or result in a breach or violation of, a default (or event which, with notice or lapse of time or both, would become a default) under, give to any Person any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Lien on such property or asset of such [Officer/Director] pursuant to any agreement, indenture, instrument, law, rule or regulation, judgment, decree, order, governmental permit, writ, injunction, or applicable license, to which such [Officer/Director] is a party or by which such [Officer/Director] or any property or asset of such [Officer/Director] is bound or affected, or (2) require any permit, authorization, consent or approval under any such law, rule, regulation, judgment, decree, order, governmental permit or license, agreement, indenture or instrument.
(f) If [Officer/Director] is married on the date of this Agreement, [Officer’s/Director’s] spouse shall execute and deliver to PCC a consent of spouse in the form of Exhibit A hereto (“ Consent of Spouse ”), effective on the date hereof. Notwithstanding the execution and delivery thereof, such consent shall not be deemed to confer or convey to the spouse any rights in such [Officer’s/Director’s] Shares that do not otherwise exist by operation of law or the agreement of the parties. If [Officer/Director] should marry or remarry subsequent to the date of this Agreement, such [Officer/Director] shall within five (5) days thereafter obtain his/her new spouse’s acknowledgement of and consent to the existence and binding effect of all restrictions contained in this Agreement by causing such spouse to execute and deliver a Consent of Spouse acknowledging the restrictions and obligations contained in this Agreement and agreeing and consenting to the same.
[Officer/Director] hereby agrees that, during the Term, [Officer/Director] will not, directly or indirectly, become a director, officer, employee, shareholder, principal, agent, consultant, advisor or independent contractor of, or render any services to, (a) any federal or state-chartered bank, insured depository institution, trust company, credit union, industrial bank, industrial loan company, savings bank, savings and loan association, or parent holding company of any such institution or company, which has a branch office, loan production office or other office or facility in the State of Washington, or (b) any other entity whose business in the State of Washington competes with the depository, lending or other business activities of Foundation Bancorp or PCC or their respective subsidiaries (in each case under clause (a) or (b) of this Section 4 , and for purposes of this Agreement, a “ Competing Business ”); provided , that this Section 4 shall not prohibit (i) [Officer/Director] from (1) owning up to five percent (5%) of (x) the outstanding capital stock of any such entity that is a Competing Business if such capital stock is publicly traded, or (y) the principal amount of a series of outstanding bonds or other debt instruments issued by a Competing Business if such bonds or other debt instruments are publicly traded, and, if such bonds or other debt instruments are convertible into any class or series of capital stock of such Competing Business, they do not (when considered collectively with any capital stock of the issuer owned by [Officer/Director]) exceed five percent (5%) of the issuer’s outstanding capital stock on an as-converted basis, or (2) (A) in the event the [Officer/Director] is a licensed attorney or accountant, from providing legal or accounting services to a Competing Business directly or through his or her firm, (B) acting as an employee or consultant to any nonprofit organization not involved in deposit taking or similar activities or primarily engaged in commercial lending, or (C) for the avoidance of doubt, utilizing the services of any Competing Business, (ii) [Officer/Director] from serving as a director, officer, employee, shareholder, partner, principal, agent, consultant, advisor or independent contractor of Castle Creek Capital or any of its Affiliates, general partners, investment advisors, or portfolio companies, or (iii) Castle Creek Capital or any of its Affiliates, general partners, investment advisors, directors, officers, employees, or principals or any of their respective Affiliates acquiring or holding, for investment purposes only, less than thirty-three percent (33%) of the outstanding equity of any bank holding company (whether or not in the State of Washington).
(a) For purposes of this Agreement, “ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls is controlled by or is under common control with such first Person.
(b) For purposes of this Agreement, the term “ Customer ” is a person or entity who: (i) is a customer of Foundation Bancorp or PCC (or their respective Subsidiaries or Affiliates) as of the date of this Agreement; or (ii) becomes a customer of Foundation Bancorp or PCC (or their respective Subsidiaries or Affiliates) prior to the Effective Time.
(c) For purposes of this Agreement, the term “ Employee ” is a person who: (i) is an employee of Foundation Bancorp or PCC (or their respective Subsidiaries or Affiliates) as of the date of this Agreement; or (ii) becomes an employee of Foundation Bancorp or PCC (or their respective Subsidiaries or Affiliates) prior to the Effective Time.
(d) Subject to Section 5(e) below, and except as may be consented to in writing by PCC, during the Term, [Officer/Director] shall not, directly or indirectly: (i) solicit, entice, influence, divert or otherwise contact any Customer or assist anyone in the solicitation, enticement, influencing, diversion or contacting of any Customer, for the purpose of causing, encouraging, or attempting to cause or encourage such Customer to divert its current, ongoing or future business from Foundation Bancorp or PCC (or their respective Subsidiaries or Affiliates), to reduce or refrain from doing any business with PCC or its Subsidiaries or Affiliates, or to transact business with any other entity that is a Competing Business; (ii) employ or assist in employing any Employee to perform services for any Competing Business; (iii) solicit any Employee to leave his or her employment with Foundation Bancorp or PCC or their respective Subsidiaries or Affiliates; (iv) make any oral or written statement, comment
or other communication (electronic or otherwise) that impugns, disparages or maligns the reputation, ethics, competency, morality or qualifications of Foundation Bancorp or PCC or any of their Affiliates, Subsidiaries, current or former directors, executive officers or Employees; or (v) agree to undertake any activity set forth in Section 5(d)(i) through 5(d)(iv) .
(e) The restrictions in Section 5(d) with respect to Employees shall not apply to: (i) general solicitations of employment through employment advertisements that are placed in publications of general circulation or in trade journals or posted on the internet; (ii) contacts initiated by an Em