VOTING AND SUPPORT AGREEMENT
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This Voting and Support Agreement (this "Agreement"), dated as of November 6, 2012, is entered into by and among PacWest Bancorp, a Delaware corporation ("Parent"), First California Financial Group, Inc., a Delaware corporation (the "Company"), and each person executing this Agreement or a counterpart to this Agreement, each of whom is a member of the board of directors of Parent (each, a "Director").
A. Pursuant to the terms of the Agreement and Plan of Merger (as the same may be amended or supplemented, the "Merger Agreement"), dated as of the date hereof, between Parent and the Company, the Company will be merged with and into Parent (the "Merger") with Parent continuing as the surviving corporation of the Merger.
B. As an inducement and a condition to each of Parent and the Company entering into the Merger Agreement, each of Parent and the Company has required that each Director, in his capacity as a stockholder of Parent, enter into this Agreement.
In consideration of Parent's and the Company's performance under the Merger Agreement, each Director agrees as follows:
- 1.
- Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the
Merger Agreement.
- 2.
- Effectiveness. If the Merger Agreement is terminated for any reason in accordance with its terms, this
Agreement shall automatically terminate and be null and void and of no effect.
- 3.
- Voting Agreement. From the date hereof until the earlier of (i) the Effective Time and (ii) the
termination of the Merger Agreement in accordance with its terms (the "Support Period"), Director agrees that at any stockholder meeting of Parent to
adopt the Merger Agreement or to approve the issuance of Parent Common Stock in connection with the Merger, or any adjournment or postponement thereof, the Director shall be present (in person or by
proxy) and shall vote (or cause to be voted) the voting shares of capital stock of Parent owned by such Director as of the date hereof along with all such shares that the Director may acquire from
time to time after the date hereof, in each case that are entitled to vote at such meeting (together, "Owned Shares"): (a) in favor of
(1) approval and adoption of the Merger Agreement, (2) approval of the issuance of Parent Common Stock in connection with the Merger, and (3) approval of any proposal to adjourn
or postpone such meeting to a later date if there are not sufficient votes to adopt the Merger Agreement or approve the issuance of Parent Common Stock in connection with the Merger; and
(b) against any action or agreement that would impair the ability of Parent to complete the Merger, the ability of the Company to complete the Merger, or that would otherwise be inconsistent
with, prevent, impede or delay the consummation of the transactions contemplated by the Merger Agreement; provided, that the foregoing applies solely to Director in his or her capacity as a
stockholder and nothing in this Agreement shall prevent Director from discharging his or her fiduciary duties with respect to his or her role on the board of directors of Parent. Director represents
and warrants and covenants and agrees that, except for this Agreement, he or she (x) has not entered into, and shall not enter into during the Support Period, any voting agreement or voting
trust with respect to the Owned Shares and (y) has not granted, and shall not grant during the Support Period, a proxy, consent or power of attorney with respect to the Owned Shares except any
proxy to carry out the intent of this Agreement.
- 4.
- Transfer Restrictions Prior to Merger. The Director will not, during the Support Period, sell, transfer, assign, tender in any tender or exchange offer, pledge, encumber, hypothecate or similarly dispose
of (by merger, by testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, enter into any swap or other arrangements that transfers to another, in whole or in part, any of the economic consequences of ownership of, enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, lien, hypothecation or other disposition of (by merger, by testamentary disposition, by operation of law or otherwise) or otherwise convey or dispose of, any of the Owned Shares, or any interest therein, including the right to vote any Owned Shares, as applicable (a "Transfer"); provided that (i) Director may Transfer Owned Shares for estate planning or philanthropic purposes so long as the transferee, prior to the date of Transfer, agrees in a signed writing to be bound by and comply with the provisions of this Agreement and (ii) Director may Transfer Owned Shares in the manner set forth on Schedule 1.
- 5.
- Cooperation. From time to time, at the reasonable request of Parent or the Company and without further
consideration, Director shall cooperate with Parent and the Company to make all filings and obtain all consents of Governmental Entities and third parties and execute and deliver such additional
documents and take all such further actions as may be necessary or desirable to effect the actions contemplated by this Agreement. Without limiting the foregoing, Director hereby (a) authorizes
Parent and the Company to publish and disclose in any public announcement, disclosure required by the SEC or by applicable Law or the Proxy Statement (and, if applicable, the
Form S-4), Director's identity and ownership of the Owned Shares, the nature of Director's obligations under this Agreement and any other information that Parent or the Company
reasonably determines is required to be disclosed in connection with the Merger and the transactions contemplated by the Merger Agreement; (b) agrees to promptly give to Parent and the Company
any information Parent or the Company may reasonably require for the preparation of any such disclosure documents; and (c) agrees to promptly notify Parent and the Company of any required
corrections with respect to any information supplied by Director, if and to the extent that such information shall have become false or misleading in any material respect.
- 6.
- Representations and Warranties. Each Director represents and warrants to Company and Parent that: this
Agreement has been duly and validly executed and delivered by such Director and constitutes a valid and legally binding agreement of such Director, enforceable against such Director in accordance with
its terms and no other action is necessary to authorize the execution and delivery by such Director or the performance of its obligations hereunder; if such Director is married and any of the Owned
Shares constitute community property or spousal approval is otherwise necessary for this Agreement to be legal, binding and enforceable, this Agreement has been duly and validly executed and delivered
by, and constitutes a valid and legally binding agreement, of Director's spouse, enforceable in accordance with its terms; the Owned Shares as of the date hereof are equal to the number of shares set
forth on the beneficial ownership table in the Company's proxy statement filed on April 26, 2012 as modified by acquisitions or dispositions reflected on Form 4 or Form 5 filings
made by such Director following the date of such filing (other than in each case for shares beneficially owned solely as a result of the Director having the right to obtain beneficial ownership of
such shares within 60 days, which for the avoidance of doubt shall not constitute Owned Shares), and the Director is current on all such Form 4 and Form 5 filings'; and Director
has, and at all times during the term of this Agreement shall have, beneficial ownership of, good and valid title to and full and exclusive power to vote, without restriction or limitation, the Owned
Shares (other than any such shares that are transferred in the manner permitted by this Agreement).
- 7.
- Entire Agreement; Assignment. This Agreement is irrevocable. The recitals are incorporated as a part of this Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Nothing in this
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Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement shall not be assigned by operation of law or otherwise and shall be binding upon and inure solely to the benefit of each party hereto; provided however that the rights under this Agreement are assignable by Parent or the Company to any successor-in-interest.
- 8.
- Remedies/Specific Enforcement. Each of the parties hereto agrees that this Agreement is intended to be
legally binding and specifically enforceable pursuant to its terms and that each of Parent and the Company would be irreparably harmed if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the event of any breach or threatened breach by Director of any covenant
or obligation contained in this Agreement, in addition to any other remedy to which Parent or the Company may be entitled (including monetary damages), each of Parent and the Company shall be entitled
to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms and provisions hereof. Director further agrees that none of Parent, the Company or any other person or
entity shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph, and Director irrevocably
waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
- 9.
- Governing Law and Enforceability. This Agreement is governed by, and shall be interpreted in accordance with,
the laws of the State of Delaware, without regard to any applicable conflict of law principles. If any court determines that the restrictions set forth in this Agreement are unenforceable, then the
parties request such court to reform these provisions to the maximum restrictions, term, scope or geographical area that such court finds enforceable. Venue of any legal action or proceeding between
the parties related to this Agreement shall be in any federal or state court located in the State of Delaware, and the parties each consent to the personal jurisdiction of the courts of the State of
Delaware and the federal courts located in the State of Delaware. Each Director agrees not to claim that the State of Delaware is an inconvenient place for trial.
- 10.
- Individual Obligations. The obligations of each of the Directors under this Agreement are several and not
joint. This Agreement is binding on each Director that executes this Agreement regardless of whether any other Director(s) also executed this Agreement.
- 11.
- Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed (i) in the case of an amendment, by Parent, the Company and the Director, and (ii) in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- 12.
- Counterparts. The parties may execute this Agreement in one or more counterparts, including by facsimile or other electronic signature. All the counterparts will be construed together and will constitute one Agreement.
[signature pages follow]
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SIGNED as of the date first set forth above:
| PACWEST BANCORP | FIRST CALIFORNIA FINANCIAL GROUP, INC. | |||||||
| By | /s/ XXXXX X. XXXXX |
By | /s/ C. G. KUM |
|||||
| Name: | Xxxxx X. Xxxxx | Name: | C. G. Kum | |||||
| Title: | Executive Vice President & General Counsel |
Title: | President / C.E.O. | |||||
Additional Signatures on Next Page
[Signature Page to Voting and Support Agreement]
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DIRECTORS:
| /s/ XXXX X. XXXXX Xxxx X. Xxxxx |
/s/ XXXXX X. XXXXXXX Xxxxx X. Xxxxxxx |
|
/s/ XXXXXXX X. XXXX Xxxxxxx X. Xxxx |
/s/ XXXX X. XXXXXXXXX III Xxxx X. Xxxxxxxxx III |
|
/s/ XXXXX X. XXXXXXXXXXX Xxxxx X. Xxxxxxxxxxx |
/s/ XXXXXX X. XXXXXXX Xxxxxx X. Xxxxxxx |
|
/s/ XXXXX X. XXXXXX Xxxxx X. Xxxxxx |
/s/ XXXXXXX X. XXXX Xxxxxxx X. Xxxx |
|
/s/ XXXXXX X. XXXXXX Xxxxxx X. Xxxxxx |
/s/ XXXXXX X. XXXXX Xxxxxx X. Xxxxx |
|
/s/ XXXX X. XXXX Xxxx X. Xxxx |
/s/ XXXXXX X. XXXXX Xxxxxx X. Xxxxx |
|
| /s/ XXXXXXX X. XXXXXX Xxxxxxx X. Xxxxxx |
[Signature Page to Voting and Support Agreement]
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- •
- Xxxx X. Xxxxx may transfer up to 2,000 Owned Shares in the aggregate to his son and his son's spouse, who, for the avoidance of doubt, shall not be subject to any of the restrictions set forth in this Agreement.
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VOTING AND SUPPORT AGREEMENT
RECITALS
AGREEMENT
Schedule 1
