Exhibit 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of July 10, 2003 (the "AGREEMENT"), by
and between Boston Private Financial Holdings, Inc., a Massachusetts corporation
("BPFH"), and the undersigned directors and/or officers (each a "SHAREHOLDER,"
and collectively, the "SHAREHOLDERS") of First State Bancorp, a California
corporation ("FSB"). Capitalized terms used herein and not defined herein have
the respective meanings set forth in the Merger Agreement (as defined below).
WHEREAS, BPFH and FSB have entered into an Agreement and Plan of
Merger, dated as of July 10, 2003, as such agreement may be subsequently amended
or modified (the "MERGER AGREEMENT"), which provides for the merger of a wholly
owned subsidiary of BPFH with and into FSB (the "MERGER");
WHEREAS, as of the date hereof, each Shareholder beneficially owns (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) and
has sole or shared voting power with respect to (a) that number of shares of
common stock, no par value, of FSB (the "COMMON STOCK"), and (b) holds stock
options or other rights to acquire that number of shares of Common Stock, each
as set forth opposite such Shareholder's name on SCHEDULE I attached hereto
(collectively, the "EXISTING SHARES," and together with any other shares of
Common Stock which such Shareholder acquires beneficial ownership in any
capacity after the date hereof and prior to the termination of this Agreement,
the "SHARES");
WHEREAS, as a condition to the willingness of BPFH to enter into the
Merger Agreement, BPFH has required that each Shareholder enter into this
Agreement with respect to such Shares; and
WHEREAS, the Shareholders intend this Agreement to be a voting
agreement authorized under Section 706 of California General Corporation Law.
NOW, THEREFORE, in consideration of, and as a condition to, BPFH's
entering into the Merger Agreement, and in consideration of the expenses
incurred and to be incurred by BPFH in connection therewith, the parties hereto
agree as follows:
1. AGREEMENT TO VOTE. While this Agreement is in effect, such Shareholder agrees
to vote or cause to be voted all Shares that such Shareholder shall be entitled
to so vote, whether such Shares are held of record or beneficially owned by such
Shareholder at the special meeting of FSB's shareholders to be called and held
following the date hereof (including any adjournment or postponement thereof,
the "SHAREHOLDER MEETING") or at any other meeting of FSB's shareholders, and in
connection with every action or approval by written consent of FSB, (a) in favor
of approval of the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement and (b) against (x) any Acquisition
Proposal (as defined in the Merger Agreement) other than the Merger, (y) any
proposal for any action or agreement that is reasonably likely to result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of FSB under the Merger Agreement or which is reasonably likely to
result in any of the conditions of FSB's obligations under the Merger Agreement
not being
fulfilled, and (z) any action which could reasonably be expected to impede,
interfere with, delay, postpone or materially adversely affect consummation of
the transactions contemplated by the Merger Agreement.
2. AGREEMENT TO RETAIN SHARES. While this Agreement is in effect, other than as
provided herein, each Shareholder agrees that he or she will not sell, assign,
transfer or otherwise dispose of (including, without limitation, by the creation
of a Lien (as defined in Section 4 below)), or permit to be sold, assigned,
transferred or otherwise disposed of, any Shares beneficially owned by such
Shareholder, except (a) transfers by will or by operation of law, in which case
this Agreement shall bind the transferee, (b) transfers pursuant to any pledge
agreement, subject to the pledgee agreeing in writing to be bound by the terms
of this Agreement, (c) transfers in connection with estate and tax planning
purposes, including transfers to relatives, trusts and charitable organizations,
subject to the transferee agreeing in writing to be bound by the terms of this
Agreement, (d) transfers to any other Shareholder of FSB who has executed a copy
of this Agreement on the date hereof with respect to the Shares held by such
Shareholder, and (e) as BPFH may otherwise agree in its sole discretion.
3. LEGEND. FSB shall cause its transfer agent to note on its records for FSB (in
whatever form maintained) that such Shares are subject to the restrictions on
voting and transfer set forth herein, and at BPFH's request shall have any
existing certificates representing Shares subject to this Agreement canceled and
reissued bearing the following legend:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO
CERTAIN VOTING AND TRANSFER RESTRICTIONS CONTAINED IN A VOTING
AGREEMENT BY AND BETWEEN BOSTON PRIVATE FINANCIAL HOLDINGS, INC. AND
CERTAIN BENEFICIAL OWNERS OF FIRST STATE BANCORP AND THESE SHARES MAY
BE SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF ONLY IN
COMPLIANCE THEREWITH. COPIES OF THE ABOVE-REFERENCED AGREEMENT ARE ON
FILE AT THE OFFICES OF FIRST STATE BANCORP."
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Each Shareholder, severally
and not jointly, hereby represents and warrants to BPFH as follows:
(a) Such Shareholder has the complete and unrestricted power and the
unqualified right to enter into and perform the terms of this
Agreement. This Agreement has been duly and validly executed and
delivered by such Shareholder and constitutes a legal, valid and
binding agreement with respect to such Shareholder, enforceable against
such Shareholder in accordance with its terms, except to the extent
enforcement may be limited by general principles of equity whether
applied in a court of law or a court of equity and by bankruptcy,
insolvency, moratorium and other similar laws affecting creditors'
rights and remedies generally.
(b) Except as set forth on SCHEDULE I hereto, such Shareholder (i)
beneficially owns the Shares free and clear of any liens, claims,
charges or other encumbrances or restrictions of any kind whatsoever
("LIENS"), and has sole, and otherwise unrestricted, voting power with
respect to such Shares with no limitations, qualifications or
restrictions
2
on such rights and (ii) does not beneficially own any shares of capital
stock of FSB other than such Shares.
(c) There are no proxies, voting trusts or understandings to or by
which such Shareholder is a party or bound or that expressly requires
that any of the Shares be voted in a specific manner other than as
provided in this Agreement or that provides for any right on the part
of any other person other than such Shareholder to vote such Shares.
5. TERM OF AGREEMENT. The Agreement with respect to voting contained in Section
1 hereof shall remain in full force and effect until the earlier of (a) the
consummation of the Merger or (b) the termination of the Merger Agreement in
accordance with Article VIII thereof and the agreement with respect to transfer
contained in Section 2 hereof shall remain in full force and effect until the
earlier of (i) the Shareholder Meeting or (ii) the termination of the Merger
Agreement in accordance with Article VIII thereof.
6. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. Such Shareholder has signed this
Agreement intending to be bound thereby. Such Shareholder expressly agrees that
this Agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against such Shareholder. All of the
covenants and agreements contained in this Agreement shall be binding upon, and
inure to the benefit of, the respective parties and their permitted successors,
assigns, heirs, executors, administrators and other legal representatives, as
the case may be.
7. WAIVERS. No waivers of any breach of this Agreement extended by BPFH to any
Shareholder shall be construed as a waiver of any rights or remedies of BPFH
with respect to any other Shareholder of FSB who has executed a copy of this
Agreement with respect to Shares held by such Shareholder or with respect to any
subsequent breach of the Shareholder or any other such Shareholder of FSB.
8. AMENDMENTS AND MODIFICATIONS. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
9. GOVERNING LAW. This Agreement and the legal restrictions between the parties
shall be governed by and construed in accordance with the laws of the State of
California applicable to contracts between California parties made and performed
in such State. If any provision shall, for any reason, be held by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement; but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
10. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which together shall
constitute one and the same instrument.
[Signature Page Follows]
3
EXECUTED as of the date first above written.
BUYER: SHAREHOLDER:
BOSTON PRIVATE FINANCIAL
HOLDINGS, INC.
By: /s/ XXXXXX X. PRESS /s/ XXXXXXXX X. XXXXXXXX
------------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxxx
Title: President and CFO
/s/ XXXXX XXXXXX
---------------------------
Name: Xxxxx Xxxxxx
/s/ XXXXXXX X XXXXXX, XX.
---------------------------
Name: Xxxxxxx X Xxxxxx, Xx.
/s/ XXXXXXX X. XXXXX
---------------------------
Name: Xxxxxxx X. Xxxxx
/s/ X. X. XXXXXXXXX
---------------------------
Name: X. X. Xxxxxxxxx
/s/ XXXXX X. XXXXX, CPA
---------------------------
Name: Xxxxx X. Xxxxx, CPA
/s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ E. XXXXX XXXXX
---------------------------
Name: E. Xxxxx Xxxxx
/s/ XXXX X. XXXXXXX
---------------------------
Name: Xxxx X. Xxxxxxx
[SIGNATURE PAGE TO VOTING AGREEMENT]
SCHEDULE I
SHAREHOLDER SHARES OPTIONS
Xxxxxxxx X. Xxxxxxxx 115,086 12,972
Xxxxx Xxxxxx 20,608 12,972
Xxxxxxx X. Xxxxxx, Xx. 7,720 22,972
Xxxxxxx X. Xxxxx 60,500 12,972
R.V. (Xxx) Xxxxxxxxx 14,304 12,972
Xxxxx X. Xxxxx, CPA 50,578 12,972
Xxxxxxx X. Xxxxxx(1) 96,164 18,472
E. Xxxxx Xxxxx 4,850 64,000
Xxxx X. Xxxxxxx 0 34,400
-------------------------------------
1 An aggregate of 24,978 of the shares owned by Xx. Xxxxxx have been
pledged to secure an obligation.
