Exhibit 10.4
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is made and entered into this
day of
,
2009, by and between First Business Bank, National Association, a
national banking association (“ First Business
Bank ”) and
(“ Affiliate ”) with reference to the
following facts:
RECITALS
A.
First Business Bank, FB Bancorp, a
California corporation (“ FB Bancorp ”),
1st Pacific Bancorp, a California corporation (“ 1st
Pacific Bancorp ”) and 1st Pacific Bank of
California, a California state-chartered commercial bank (“
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
”).
B.
As a condition to its willingness to
enter into the Reorganization Agreement, and in reliance on
Affiliate’s representations, warranties, covenants and
agreements hereunder, First Business Bank has requested that
Affiliate agree, and Affiliate has agreed, to enter into this
Agreement and to perform Affiliate’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:
AGREEMENT
1.
AGREEMENTS OF
AFFILIATE
1.1.
Agreement to Vote
. At any meeting of
shareholders of 1st Pacific Bancorp to approve the Merger, the
Reorganization Agreement and the transactions contemplated thereby,
Affiliate shall vote or cause to be voted all shares of common
stock of 1st Pacific Bancorp, no par value per share (“
1st Pacific Bancorp Stock ”) owned by Affiliate
and any other shares of 1st Pacific Bancorp Stock hereafter
acquired by Affiliate in favor of, and to approve, the principal
terms of the Merger and any other matter contemplated by the
Reorganization Agreement which requires the approval of the
shareholders of 1st Pacific Bancorp, including but not limited to
the Merger.
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1.2.
Agreement to Recommend
. Subject to Affiliate’s
fiduciary obligations under applicable law and those referenced in
Sections 6.10 and 8.2.1 of the Reorganization Agreement, Affiliate
shall recommend to the shareholders of 1st Pacific Bancorp to vote
in favor of, and to approve, the principal terms of the Merger and
any other matters contemplated by the Reorganization
Agreement.
1.3.
Restrictions on
Dispositions .
Affiliate agrees that, except with the prior written consent of
First Business Bank, or pursuant to the Merger, Affiliate will not
pledge nor otherwise encumber, sell, assign or otherwise dispose of
any shares of 1st Pacific Bancorp Stock currently owned or acquired
by Affiliate after the date of this Agreement.
1.4.
Cooperation
. Subject to Affiliate’s
fiduciary obligations under applicable law and those referenced in
Sections 6.10 and 8.2.1 of the Reorganization Agreement, Affiliate
agrees to cooperate fully with First Business Bank and FB Bancorp
in connection with the Merger and the other transactions
contemplated in the Reorganization Agreement.
2.
RESTRICTIVE COVENANTS OF
AFFILIATE
2.1.
Covenant Not to
Compete . Other
than serving as a director, officer or shareholder of 1st Pacific
Bancorp, 1st Pacific Bank, FB Bancorp, First Business Bank,
Surviving Corporation, Surviving Bank or Surviving Bank Holding
Company (collectively, the “ FBB Affiliates
”), Affiliate agrees that, for a period of two (2) years
from the Effective Time of the Merger (as defined in the
Reorganization Agreement)(the “ Noncompetition
Period ”), Affiliate will not, directly or
indirectly, individually or as an owner, partner, shareholder,
joint venturer, corporate officer, director, employee, consultant,
principal, agent, trustee or licensor, or in any other similar
capacity whatsoever of or for any person, firm, partnership,
company or corporation own, manage, operate, control or participate
in the ownership, management, operation, or control of any
Competing Business in the Covered Area; provided, however, that
Affiliate may continue owning, purchase or otherwise acquire up to
(but not more than) two percent (2%) of any class of securities of
any enterprise if such securities are publicly traded, provided
Affiliate may not participate, either directly or indirectly, in
the management, operation or other activities of such enterprise,
whether as a consultant, employee, officer, director, advisor,
board member or otherwise. As used herein, the term “
Competing Business ” means any financial
institution whose deposits are insured by the federal government or
which is regulated by the Federal Reserve Board or any trust
company that operates within the Covered Area. As used
herein, the term “ Covered Area ” means
San Diego County, State of California.
2.2.
Nonsolicitation of Employees and
Consultants .
During the Noncompetition Period, Affiliate agrees that Affiliate
will not directly or indirectly solicit, influence, entice or
encourage any person who at such time is, or who at any time in the
four (4) month period prior to such time had been, an employee
of or consultant to FB Bancorp, First Business Bank, 1st Pacific
Bancorp or 1st Pacific Bank to cease or curtail his or her
relationship therewith; provided, however, that no breach of this
Section 2.2 shall be deemed to have occurred by
Affiliate’s posting or publication of a general advertisement
for an open position.
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2.3.
Covenant Not to Hire
. During the Noncompetition
Period, Affiliate agrees that Affiliate will not directly or
indirectly hire or attempt to hire, whether as an employee,
consultant or otherwise, any person who at such time is, or who at
any time in the two (2) month period prior to such time had
been, employed by FB Bancorp, First Business Bank, 1st Pacific
Bancorp or 1st Pacific Bank.
2.4.
Trade Secrets
. For all times after the date
hereof, other than for the benefit of FB Bancorp, First Business
Bank, 1st Pacific Bancorp and/or 1st Pacific Bank (including the
Surviving Corporation and the Surviving Bank), Affiliate agrees
that Affiliate: (i) shall make no use of Trade Secrets for the
benefit of any other entity or person; and (ii) shall deliver,
on and after the Effective Time, all documents, reports, drawings,
designs, plans, proposals and other tangible evidence of Trade
Secrets, now possessed or hereafter acquired by Affiliate, to the
Surviving Bank. For purposes of this Agreement, the term
“ Trade Secrets ” shall mean:
(a)
All secrets and other confidential
information, ideas, knowledge, know-how, techniques, secret
processes, improvements, discoveries, methods, inventions, sales,
financial information, lists of customers and prospective
customers, plans, concepts, strategies or products, as well as all
documents, reports, drawings, designs, plans and proposals
otherwise pertaining to same or relating to the business and
properties of FB Bancorp, First Business Bank, 1st Pacific Bancorp
and/or 1st Pacific Bank (including the Surviving Corporation and
the Survivi
