52027286_v14 i ARTICLE I CERTAIN DEFINITIONS .................................. .................................................. 1 1.01 Certain Definitions . ..................................................................................
Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF AUGUST 8, 2017
BY AND BETWEEN
PACIFIC PREMIER BANCORP, INC.
AND
PLAZA BANCORP
#52027286_v14 i
ARTICLE I CERTAIN DEFINITIONS .................................................................................... 1
1.01 Certain Definitions ................................................................................................. 1
ARTICLE II THE MERGER ................................................................................................... 10
2.01 The Merger........................................................................................................... 10
2.02 Effective Date and Effective Time; Closing. ....................................................... 11
2.03 Bank Merger ........................................................................................................ 11
ARTICLE III CONSIDERATION AND EXCHANGE PROCEDURES ............................ 11
3.01 Conversion of Shares ........................................................................................... 11
3.02 Exchange Procedures. .......................................................................................... 12
3.03 Rights as Shareholders ......................................................................................... 14
3.04 No Fractional Shares ............................................................................................ 14
3.05 Dissenting Shares ................................................................................................. 14
3.06 Anti-Dilution Provisions ...................................................................................... 14
3.07 Withholding Rights .............................................................................................. 15
3.08 Plaza Options, Plaza Warrants and Plaza Restricted Stock ................................. 15
3.09 Reservation of Shares .......................................................................................... 16
ARTICLE IV ACTIONS PENDING ACQUISITION ........................................................... 16
4.01 Forbearances of Plaza .......................................................................................... 16
4.02 Forbearances of PPBI .......................................................................................... 20
ARTICLE V REPRESENTATIONS AND WARRANTIES ................................................. 20
5.01 Disclosure Schedules ........................................................................................... 20
5.02 Standard ............................................................................................................... 21
5.03 Representations and Warranties of Plaza ............................................................. 21
5.04 Representations and Warranties of PPBI ............................................................. 42
ARTICLE VI COVENANTS .................................................................................................... 49
6.01 Reasonable Best Efforts ....................................................................................... 49
6.02 Intentionally Omitted. .......................................................................................... 49
6.03 Registration Statement; Solicitation of Plaza Shareholder Consents. ................. 49
6.04 Regulatory Filings. ............................................................................................... 50
6.05 Press Releases ...................................................................................................... 51
6.06 Access; Information. ............................................................................................ 51
6.07 Acquisition Proposals. ......................................................................................... 53
6.08 Certain Policies .................................................................................................... 56
TABLE OF CONTENTS
(Continued)
Page
#52027286_v14 ii
6.09 Nasdaq Listing ..................................................................................................... 56
6.10 Indemnification. ................................................................................................... 56
6.11 Benefit Plans. ....................................................................................................... 58
6.12 Investor Rights Agreement .................................................................................. 60
6.13 Notification of Certain Matters ............................................................................ 60
6.14 Estoppel Letters ................................................................................................... 60
6.15 Assumption of Subordinated Notes Obligations.................................................. 61
6.16 Antitakeover Statutes ........................................................................................... 61
6.17 Consents ............................................................................................................... 61
6.18 Exemption from Liability Under Section 16(b) ................................................... 61
6.19 Consent Decree .................................................................................................... 61
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER .................... 61
7.01 Conditions to Each Party’s Obligation to Effect the Merger ............................... 61
7.02 Conditions to Obligation of Plaza ........................................................................ 62
7.03 Conditions to Obligation of PPBI ........................................................................ 63
ARTICLE VIII TERMINATION ............................................................................................ 64
8.01 Termination .......................................................................................................... 64
8.02 Effect of Termination and Abandonment ............................................................ 65
ARTICLE IX MISCELLANEOUS .......................................................................................... 66
9.01 Survival ................................................................................................................ 66
9.02 Waiver; Amendment ............................................................................................ 66
9.03 Counterparts ......................................................................................................... 66
9.04 Governing Law .................................................................................................... 67
9.05 Expenses .............................................................................................................. 67
9.06 Notices ................................................................................................................. 67
9.07 Entire Understanding; Limited Third Party Beneficiaries ................................... 68
9.08 Severability .......................................................................................................... 68
9.09 Enforcement of the Agreement ............................................................................ 68
9.10 Interpretation ........................................................................................................ 69
9.11 Assignment .......................................................................................................... 69
9.12 Alternative Structure ............................................................................................ 69
TABLE OF CONTENTS
(Continued)
Page
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ANNEX A Form of Support Agreement ..................................................................... A-1
ANNEX B Form of Shareholder Agreement .............................................................. B-1
ANNEX C Certificate of Merger ................................................................................. C-1
ANNEX D Bank Merger Agreement ........................................................................... D-1
ANNEX E Form of Investor Rights Agreement ........................................................ E-1
ANNEX F Form of Tenant Estoppel Letter ............................................................... ▇-▇
▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ Estoppel Letter ........................................................... G-1
#52027286_v14 1
AGREEMENT AND PLAN OF REORGANIZATION, dated as of August 8, 2017 by
and between Pacific Premier Bancorp, Inc. (“PPBI”) and Plaza Bancorp (“Plaza”).
RECITALS
A. Plaza. Plaza is a Delaware corporation, having its principal place of business in
Irvine, California.
B. PPBI. PPBI is a Delaware corporation, having its principal place of business in
Irvine, California.
C. Intention of the Parties. It is the intention of the parties to this Agreement that the
Merger provided for herein be treated as a “reorganization” under Section 368(a) of the Internal
Revenue Code of 1986, as amended (the “Code”), and the regulations and formal guidance issued
thereunder.
D. Board Action. The respective Boards of Directors of each of PPBI and Plaza have
determined that it is in the best interests of their respective companies and their shareholders to
enter into this Agreement.
E. Support Agreement and Shareholder Agreements. As a material inducement to
PPBI to enter into this Agreement, and simultaneously with the execution of this Agreement, (i)
▇▇▇▇▇▇▇▇▇ is entering into an agreement, substantially in the form attached hereto as Annex A (the
“Support Agreement”), pursuant to which it has agreed, among other things, to provide written
consent to vote its shares of Plaza Common Stock in favor of the Agreement and the Transactions
provided for hereunder, and (ii) each Shareholder is entering into an agreement, substantially in
the form attached hereto as Annex B (collectively, the “Shareholder Agreements”), pursuant to
which they have agreed both to provide written consents to vote their shares of Plaza Common
Stock in favor of this Agreement and the Transactions provided for hereunder and to not solicit
the customers or employees of Plaza for the prescribed term.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants,
representations, warranties and agreements contained herein the parties to this Agreement agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 Certain Definitions. The following terms are used in this Agreement with the
meanings set forth below:
“Acceptable Confidentiality Agreement” has the meaning set forth in Section 6.07(a).
“Acquisition Agreement” has the meaning set forth in Section 6.07(b).
“Acquisition Proposal” has the meaning set forth in Section 6.07(a).
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“Adverse Change Notice” has the meaning set forth in Section 6.07(b).
“Adverse Recommendation Change” has the meaning set forth in Section 6.07(b).
“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.
“Agreement” means this Agreement and Plan of Reorganization, as amended or modified
from time to time in accordance with Section 9.02.
“Bank Merger” has the meaning set forth in Section 2.03.
“Bank Merger Agreement” means the Bank Merger Agreement by and between Pacific
Premier and Plaza Bank, the form of which is attached hereto as Annex D, as amended or modified
from time to time in accordance with its provisions.
“Bank Secrecy Act” means the Bank Secrecy Act of 1970, as amended.
“Benefit Plans” has the meaning set forth in Section 5.03(m)(i).
“Book-Entry Shares” means shares of Plaza Common Stock held in book-entry form
immediately prior to the Effective Time.
“Business Day” means Monday through Friday of each week, except a legal holiday
recognized as such by the U. S. Government or any day on which banking institutions in the State
of California are authorized or obligated to close.
“▇▇▇▇▇▇▇▇▇” has the meaning set forth in Section 6.04(a).
“Certificate” means any certificate which immediately prior to the Effective Time
represented shares of Plaza Common Stock.
“Certificate of Merger” has the meaning set forth in Section 2.02(a).
“CFC” means the California Financial Code, as amended.
“CGCL” means the California General Corporation Law, as amended.
“Closing” and “Closing Date” have the meanings set forth in Section 2.02(b).
“Code” has the meaning set forth in the preamble to this Agreement.
“Community Reinvestment Act” means the Community Reinvestment Act of 1977, as
amended.
“Confidentiality Agreement” has the meaning set forth in Section 6.06(e).
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“Consent Decree” means the Consent Decree, dated March 30, 2015, between the DOJ and
Plaza Bank.
“DBO” means the California Department of Business Oversight – Division of Financial
Institutions.
“Derivatives Contract” has the meaning set forth in Section 5.03(q)(ii).
“DGCL” means the Delaware General Corporation Law, as amended.
“Disclosure Schedule” has the meaning set forth in Section 5.01.
“Dissenting Shares” has the meaning set forth in Section 3.05.
“DOJ” means the U.S. Department of Justice.
“DOL” has the meaning set forth in Section 5.03(m)(i).
“Effective Date” has the meaning set forth in Section 2.02(a).
“Effective Time” has the meaning set forth in Section 2.02(a).
“Employees” has the meaning set forth in Section 5.03(m)(i).
“Environmental Laws” has the meaning set forth in Section 5.03(o).
“Equal Credit Opportunity Act” means the Equal Credit Opportunity Act, as amended.
“Equity Investment” means (a) an Equity Security; (b) an ownership interest in any
company or other entity or a membership interest that includes a voting right in any company or
other entity; and (c) any investment or transaction which in substance falls into any of these
categories even though it may be structured as some other form of investment or transaction.
“Equity Security” means any stock, certificate of interest or participation in any profit-
sharing agreement, collateral-trust certificate, preorganization certificate or subscription,
transferable share, investment contract, or voting-trust certificate; any security convertible into
such a security; any security carrying any warrant or right to subscribe to or purchase any such
security; and any certificate of interest or participation in, temporary or interim certificate for, or
receipt for any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and
the regulations and formal guidance issued thereunder.
“ERISA Affiliate” has the meaning set forth in Section 5.03(m)(iii).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder.
“Exchange Agent” has the meaning set forth in Section 3.03(a).
#52027286_v14 4
“Exchange Ratio” has the meaning set forth in Section 3.01(b).
“Fair Housing Act” means the Fair Housing Act, as amended.
“FDIC” means the Federal Deposit Insurance Corporation.
“FHLB” means the Federal Home Loan Bank of San Francisco.
“FRB” means the Board of Governors of the Federal Reserve System.
“GAAP” means accounting principles generally accepted in the United States of America.
“Governmental Authority” means any federal, state or local court, administrative agency
or commission or other governmental authority or instrumentality or self-regulatory organization.
“Hazardous Substance” has the meaning set forth in Section 5.03(o).
“Indemnified Parties” and “Indemnifying Party” have the meanings set forth in Section
6.10(a).
“Information Statement” has the meaning set forth in Section 6.02(b).
“Insurance Policies” has the meaning set forth in Section 5.03(w).
“Intellectual Property” means: (a) all inventions (whether patentable or unpatentable and
whether or not reduced to practice), all improvements thereon, and all patents, patent applications
and patent disclosures, together with all reissues, continuations, continuations-in-part, divisions,
extensions and re-examinations thereof; (b) all trademarks whether registered or unregistered,
service marks, domain names, corporate names and all combinations thereof, and associated
therewith; (c) all copyrights whether registered or unregistered, and all applications, registrations
and renewals in connection therewith; (d) all datasets, databases and related documentation; and
(e) all other intellectual property and proprietary rights.
“Investor Rights Agreement” means the Investor Rights Agreement between PPBI and
▇▇▇▇▇▇▇▇▇, on behalf of the investors named therein, the form of which is attached as Annex E, as
amended or modified from time to time in accordance with its provisions.
“IRS” has the meaning set forth in Section 5.03(m)(i).
“Knowledge” means facts and other information which, as of the date hereof, the chairman
of the board, chief executive officer, president, chief financial officer, chief operating officer, chief
information officer, chief credit officer and chief bank counsel (and any officer superior to any of
the foregoing) of a party or any Subsidiary of such party actually knows after due inquiry.
“Liens” means any charge, mortgage, pledge, security interest, restriction, claim, lien or
encumbrance other than Permitted Liens.
“Loans” has the meaning set forth in Section 4.01(s).
#52027286_v14 5
“Material Adverse Effect” means, with respect to PPBI or Plaza, any effect that (i) is
material and adverse to the financial condition, results of operations or business of PPBI and its
Subsidiaries taken as a whole or Plaza and its Subsidiaries taken as a whole, as the case may be,
or (ii) would materially impair the ability of any of PPBI and its Subsidiaries or Plaza and its
Subsidiaries, as the case may be, to perform their respective obligations under this Agreement or
otherwise materially impede the consummation of the Transaction; provided, however, that
Material Adverse Effect with respect to subclause (i) shall not be deemed to include the impact of
(a) changes after the date hereof in laws or regulation of general applicability to banks, savings
institutions and their holding companies or interpretations thereof by Governmental Authorities,
(b) changes after the date hereof in GAAP or regulatory accounting requirements applicable to
banks, savings institutions and their holding companies generally, (c) any outbreak or escalation
of hostilities, declared or undeclared acts of war or terrorism, (d) changes resulting from conditions
affecting the banking and financial services industry or changes in global, national or regional
political conditions or market conditions (including changes in prevailing interest rates or
exchange rates) affecting banks, savings institutions and their holding companies generally, (e) the
public announcement or pendency of the Transaction, including the impact of the Transaction on
relationships with customers or employees, (f) any modifications or changes to valuation policies
and practices in connection with the Transaction or restructuring charges taken in connection with
the Transaction, in each case in accordance with GAAP, (g) the failure, in and of itself, to meet
earnings projections or internal financial forecasts, but not including the underlying causes thereof
(unless otherwise excluded hereunder), or changes in the trading price or trading volume of a
party’s common stock, in and of itself, but not including the underlying causes thereof (unless
otherwise excluded hereunder), and (h) with respect to Plaza, the effects of any action or omission
taken with the prior consent of PPBI or as otherwise required by this Agreement; provided that the
effect of such changes described in clauses (a), (b), (c) and (d) shall not be excluded when
determining whether a Material Adverse Effect has occurred to the extent of a materially
disproportionate impact, if any, on PPBI and its Subsidiaries as a whole on the one hand, or Plaza
and its Subsidiaries on the other hand, as measured relative to similarly situated companies in the
banking industry.
“Material Contracts” has the meaning set forth in Section 5.03(k)(i).
“Maximum Insurance Amount” has the meaning set forth in Section 6.10(c).
“Merger” has the meaning set forth in Section 2.01(a).
“Merger Consideration” means the aggregate number of whole shares of PPBI Common
Stock, based on the Exchange Ratio, plus cash in lieu of any fractional share interest, payable to
the holders of Plaza Common Stock in connection with the Transaction.
“Merger Related Expenses” means all costs, fees and expenses incurred or to be incurred
by Plaza and its Subsidiaries in connection with this Agreement and the Transaction up to and
including the Closing of the Transaction, including but not limited to change-in-control payments,
retention and severance payments approved in writing by PPBI or Previously Disclosed, the fees
and expenses associated with the termination of any Material Contracts that are required to be
terminated on or before the Closing pursuant to their terms (including vendor contracts) in
connection with the Transaction or that PPBI and Plaza otherwise mutually agree to terminate on
#52027286_v14 6
or before the Closing, the amount(s) paid (whether paid by PPBI or its Subsidiaries or Plaza or its
Subsidiaries) to obtain the insurance coverage required pursuant to Section 6.10(c) hereof and the
fees and expenses of their attorneys, accountants, investment bankers and other advisors. An
estimate of Merger Related Expenses shall be set forth in Section 1.01(a) of Plaza’s Disclosure
Schedule, which shall be updated within five Business Days prior to the Closing Date.
“Nasdaq” means the Nasdaq Global Market or such other securities exchange on which the
PPBI Common Stock may be listed.
“National Labor Relations Act” means the National Labor Relations Act, as amended.
“Option Merger Consideration” has the meaning set forth in Section 3.08(a).
“OREO” means other real estate owned.
“Pacific Premier” means Pacific Premier Bank, a California-chartered bank and a wholly-
owned subsidiary of PPBI.
“Pacific Premier Articles” means the Articles of Incorporation of Pacific Premier, as
amended.
“Pacific Premier Board” means the Board of Directors of Pacific Premier.
“Pacific Premier Bylaws” means the Amended and Restated Bylaws of Pacific Premier, as
amended.
“Pension Plan” has the meaning set forth in Section 5.03(m)(ii).
“Permitted Lien” means (i) statutory Liens securing payments not yet delinquent (or being
contested in good faith and for which adequate reserves have been established), (ii) Liens for real
property Taxes not yet delinquent, or (iii) easements, rights of way, restrictive covenants,
imperfections or irregularities of title, and other similar encumbrances or Liens that do not
materially affect the value or prohibit the current use of the property or asset subject thereto.
“Person” means any individual, bank, corporation, partnership, association, joint-stock
company, business trust, limited liability company or unincorporated organization.
“Plaza” has the meaning set forth in the preamble to this Agreement.
“Plaza Articles” means the Certificate of Incorporation of Plaza, as amended.
“Plaza Bank” means Plaza Bank, a California-chartered bank and a wholly-owned
subsidiary of Plaza.
“Plaza Bank Board” means the Board of Directors of Plaza Bank.
“Plaza Board” means the Board of Directors of Plaza.
“Plaza Bylaws” means the Amended and Restated Bylaws of Plaza, as amended.
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“Plaza Common Stock” means the common stock, $0.0001 par value per share, of Plaza.
“Plaza Consent Statement” has the meaning set forth in Section 6.03(a).
“Plaza Financial Statements” means (i) the audited consolidated balance sheets and
statements of income, comprehensive income, equity and cash flows for each of the years ended
December 31, 2016, 2015 and 2014 and (ii) unaudited consolidated balance sheets and statements
of income for the monthly, quarterly and annual periods subsequent to December 31, 2016.
“Plaza Group” means any or all of Plaza and its Subsidiaries or any predecessor of or any
successor to any or all of Plaza and its Subsidiaries (or to another such predecessor or successor).
References herein to the Plaza Group shall be deemed to refer to both the Plaza Group as a whole
and to each individual member thereof, as well as to groups comprising some, but not all, of Plaza
and its Subsidiaries.
“Plaza IT Systems” has the meaning set forth in Section 5.03(t)(iii).
“Plaza Loan Property” has the meaning set forth in Section 5.03(o).
“Plaza NQDP” has the meaning set forth in Section 5.03(m)(vii).
“Plaza Options” means the options to acquire Plaza Common Stock.
“Plaza Preferred Stock” means the serial preferred stock, no par value per share, of Plaza.
“Plaza Restricted Stock” has the meaning set forth in Section 3.08(c).
“Plaza Retirement Plan” has the meaning set forth in Section 6.11(e).
“Plaza Shareholder Consents” has the meaning set forth in Section 6.03(a).
“Plaza Stock-Based Plans” means the Plaza Bancorp 2015 Equity Incentive Plan, the Plaza
Bank 2010 Equity Incentive Plan, the Manhattan Bancorp 2010 Equity Incentive Plan, the
California General Bank, National Association 2009 Stock Option Plan and the Manhattan
Bancorp 2007 Stock Option Plan.
“Plaza Warrants” means the warrants to acquire Plaza Common Stock.
“PPBI” has the meaning set forth in the preamble to this Agreement.
“PPBI Average Share Price” shall mean the average closing price per share of PPBI
Common Stock, as reported on Nasdaq, for the 20 trading days ending on and including the fifth
trading day prior to the Closing Date.
“PPBI Benefit Plans” has the meaning set forth in Section 5.04(l)(i).
“PPBI Board” means the Board of Directors of PPBI.
“PPBI Bylaws” means the Amended and Restated Bylaws of PPBI.
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“PPBI Certificate” means the Amended and Restated Certificate of Incorporation of PPBI.
“PPBI Common Stock” means the common stock, $0.01 par value per share, of PPBI.
“PPBI Preferred Stock” means the preferred stock, $0.01 par value per share, of PPBI.
“PPBI Securities Documents” has the meaning set forth in Section 5.04(g)(i).
“Previously Disclosed” by a party shall mean information set forth in a section of its
Disclosure Schedule corresponding to the section of this Agreement where such term is used;
provided, that any information set forth in any section of a party’s Disclosure Schedule shall be
deemed to apply to and be set forth in each other section or subsection of its Disclosure Schedule,
if its relevance to such other section or subsection is reasonably apparent on its face.
“Registration Statement” has the meaning set forth in Section 6.03(a).
“Representatives” has the meaning set forth in Section 6.07(a).
“Retiree Welfare Plan” means any Benefit Plan providing for retiree health and life
benefits, other than group health plan continuation coverage as may be required under Section
4980B of the Code or Part 6 of Subtitle B of Title I of ERISA, or under the continuation of coverage
provisions of the laws of any state or locality.
“Rights” means, with respect to any Person, warrants, options, rights, convertible securities
and other arrangements or commitments which obligate the Person to issue or dispose of any of
its capital stock or other ownership interests.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Creditor Exemption” has the meaning set forth in Section 5.03(o).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
“Senior Officer” means an employee of Plaza or Plaza Bank with the title of senior vice
president or higher.
“Shareholders” means each director and the Chief Executive Officer, President and Chief
Financial Officer of Plaza and Plaza Bank.
“Shareholder Approval” has the meaning set forth in Section 5.03(z)(i).
“Shareholder Agreements” has the meaning set forth in the recitals to this Agreement.
“Subordinated Notes” means the 7.125% subordinated notes due 2025 in the aggregate
principal amount of $25.0 million issued by Plaza pursuant to the Subordinated Note Purchase
Agreement dated January 14, 2015.
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“Subsidiary” has the meaning ascribed to that term in Rule l-02 of Regulation S-X of the
SEC.
“Superior Proposal” has the meaning set forth in Section 6.07(a).
“Surviving Corporation” has the meaning set forth in Section 2.01(a).
“Tangible Common Equity” means Plaza’s total stockholders’ equity (i) excluding
intangible assets, (ii) excluding preferred stock, (iii) excluding accumulated other comprehensive
income from March 31, 2017 through the Closing, (iv) adding back any expenses incurred by Plaza
or Plaza Bank with respect to its compliance with Section 6.19 of this Agreement and (v) adding
back up to $8.2 million of Merger Related Expenses incurred by Plaza prior to the Closing Date
on a tax-adjusted basis (to the extent there was a tax benefit recorded by Plaza as a result of the
incurrence of such expense) based on Plaza’s marginal tax rate; provided that “total stockholders’
equity,” “intangible assets” and “accumulated other comprehensive income” shall each be
calculated in accordance with GAAP and the Plaza Financial Statements; provided further, that if
the Effective Time occurs prior to November 30, 2017, there shall be added to Tangible Common
Equity a reasonable projection (agreed to by Plaza and PPBI) of Plaza’s consolidated net income
through November 30, 2017, which shall be based upon the average monthly consolidated net
income of Plaza for the period from January 1, 2017 through the last day of month immediately
preceding the month in which the Effective Time occurs.
“Tax” and “Taxes” mean all federal, state, local or foreign income, gross income, gains,
gross receipts, sales, use, ad valorem, goods and services, capital, production, transfer, franchise,
windfall profits, license, withholding, payroll, employment, disability, employer health, excise,
estimated, severance, stamp, occupation, property (real or personal), real property gains,
registration, alternative minimum, add-on minimum, value added, natural resources, social
security, environmental, custom duties, unemployment or other taxes of any kind whatsoever,
together with any interest, additions or penalties thereto and any interest in respect of such interest
and penalties.
“Tax Returns” means any return (including any amended return), declaration or other
report (including elections, declarations, claims for refunds, schedules, estimates and information
returns) with respect to any Taxes (including estimated taxes).
“Termination Fee” has the meaning set forth in Section 8.02(b).
“Third Party Payment Processor” has the meaning set forth in Paragraph I of Section II of
the Consent Decree, dated March 30, 2015, between the U.S. Department of Justice and Plaza
Bank.
“Transaction” means the Merger, the Bank Merger and any other transactions
contemplated by this Agreement.
“Transferred Employees” has the meaning set forth in Section 6.11(d).
“Treasury Regulations” has the meaning set forth in Section 5.03(p)(xv).
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“Warrant Merger Consideration” has the meaning set forth in Section 3.08(b).
ARTICLE II
THE MERGER
2.01 The Merger.
(a) The Merger. Subject to the terms and conditions of this Agreement, at the
Effective Time, Plaza shall merge with and into PPBI (the “Merger”) in accordance with the
applicable provisions of the DGCL, the separate corporate existence of Plaza shall cease and PPBI
shall survive and continue to exist as a corporation incorporated under the DGCL (PPBI, as the
surviving corporation of the Merger, is sometimes referred to herein as the “Surviving
Corporation”).
(b) Name. The name of the Surviving Corporation shall be “Pacific Premier
Bancorp, Inc.”
(c) Certificate and Bylaws. The certificate of incorporation and bylaws of the
Surviving Corporation immediately after the Merger shall be the PPBI Certificate and the PPBI
Bylaws as in effect immediately prior to the Merger.
(d) Directors and Executive Officers of the Surviving Corporation. The
directors of the Surviving Corporation immediately after the Merger shall be the directors of PPBI
immediately prior to the Merger, except for the possible addition of one new director as
contemplated by Section 6.12 and the Investor Rights Agreement, who, if appointed, shall serve
until his successor shall be duly elected and qualified. The executive officers of the Surviving
Corporation immediately after the Merger shall be the executive officers of PPBI immediately
prior to the Merger, each of whom shall serve until such time as their successors shall be duly
elected and qualified.
(e) Authorized Capital Stock. The authorized capital stock of the Surviving
Corporation upon consummation of the Merger shall be as set forth in the PPBI Certificate
immediately prior to the Merger.
(f) Effect of the Merger. At the Effective Time, the effect of the Merger shall
be as provided in accordance with the DGCL. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises
of Plaza shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions,
disabilities and duties of Plaza shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Surviving Corporation.
(g) Additional Actions. If, at any time after the Effective Time, the Surviving
Corporation shall consider that any further assignments or assurances in law or any other acts are
necessary or desirable to (i) vest, perfect, record or otherwise confirm the Surviving Corporation’s
right, title or interest in, to or under any of the rights, properties or assets of Plaza acquired or to
be acquired by the Surviving Corporation as a result of, or in connection with, the Merger, or (ii)
otherwise carry out the purposes of this Agreement, Plaza, and its proper officers and directors,
#52027286_v14 11
acting in such corporate capacity and not individually, shall be deemed to have granted to the
Surviving Corporation an irrevocable power of attorney to execute and deliver all such proper
deeds, assignments and assurances in law and to do all acts necessary or proper to vest, perfect or
confirm title to and possession of such rights, properties or assets in the Surviving Corporation and
otherwise to carry out the purposes of this Agreement, and the proper officers and directors of the
Surviving Corporation are fully authorized in the name of the Surviving Corporation or otherwise
to take any and all such action.
2.02 Effective Date and Effective Time; Closing.
(a) Subject to the satisfaction or waiver of the conditions set forth in Article VII
(other than those conditions that by their nature are to be satisfied at the consummation of the
Merger, but subject to the fulfillment or waiver of those conditions), the parties shall cause a
certificate of merger relating to the Merger, the form of which is attached hereto as Annex C (the
“Certificate of Merger”), to be filed with the Secretary of State of the State of Delaware pursuant
to the DGCL on (i) a date mutually selected by PPBI and Plaza after such satisfaction or waiver
which is no later than the later of (A) five Business Days after such satisfaction or waiver or (B)
the first month end following such satisfaction or waiver, or (ii) such other date to which the parties
may mutually agree in writing. The Merger provided for herein shall become effective upon the
filing of the Certificate of Merger with the Secretary of State of the State of Delaware or such later
time as specified in the Certificate of Merger. The date of such filing with the Secretary of State
of the State of Delaware is herein called the “Effective Date.” The “Effective Time” of the Merger
shall be the time of such filing or as set forth in such filing.
(b) A closing (the “Closing”) shall take place immediately prior to the Effective
Time at the offices of Holland & Knight LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or
at such other place, at such other time, or on such other date as the parties may mutually agree
upon in writing (such date, the “Closing Date”). At the Closing, there shall be delivered to PPBI
and Plaza the certificates and other documents required to be delivered under Article VII hereof.
2.03 Bank Merger. As soon as practicable after the execution of this Agreement, or on
such later date as PPBI shall specify in writing, PPBI and Plaza shall cause Pacific Premier and
Plaza Bank, respectively, to enter into the Bank Merger Agreement, the form of which is attached
hereto as Annex D, which provides for the merger of Plaza Bank with and into Pacific Premier
(the “Bank Merger”), in accordance with applicable laws and regulations and the terms of the Bank
Merger Agreement, as soon as practicable after consummation of the Merger. The Bank Merger
Agreement provides that the directors of Pacific Premier immediately after the Bank Merger shall
be the directors of Pacific Premier immediately prior to the Bank Merger, except for the possible
addition of the new director as contemplated by Section 6.12 and the Investor Rights Agreement.
ARTICLE III
CONSIDERATION AND EXCHANGE PROCEDURES
3.01 Conversion of Shares. At the Effective Time, by virtue of the Merger and without
any action on the part of a holder of shares of Plaza Common Stock:
#52027286_v14 12
(a) PPBI Common Stock. Each share of PPBI Common Stock that is issued
and outstanding immediately prior to the Effective Time shall remain issued and outstanding and
shall be unchanged by the Merger.
(b) Plaza Common Stock. Subject to Sections 3.02, 3.04, 3.05, 3.06 and 3.07,
each share of Plaza Common Stock issued and outstanding immediately prior to the Effective Time
shall be converted into, and shall be canceled in exchange for, the right to receive 0.2000 shares
of PPBI Common Stock (the “Exchange Ratio”).
3.02 Exchange Procedures.
(a) Mailing of Transmittal Material. Provided that Plaza has delivered, or
caused to be delivered, to the agent designated by PPBI (who, if different than PPBI’s or Plaza’s
then serving registrar and transfer agent, is reasonably acceptable to Plaza) (the “Exchange
Agent”) all information which is reasonably necessary for the Exchange Agent to perform its
obligations as specified herein, the Exchange Agent shall, promptly following the Effective Date
(but in no event more than three (3) Business Days after the Effective Date), mail and otherwise
make available to each holder of record of Plaza Common Stock, a notice and a form of letter of
transmittal, in a form reasonably acceptable to Plaza (which shall specify that delivery shall be
effected, and risk of loss and title to such Certificate(s) theretofore representing shares of Plaza
Common Stock shall pass, only upon proper delivery of such Certificate(s) to the Exchange Agent
or transfer of Book-Entry Shares to the Exchange Agent), advising such holder of the effectiveness
of the Merger and the procedure for surrendering to the Exchange Agent such Certificate(s) or
Book-Entry Shares in exchange for the Merger Consideration to which such holder may be entitled
pursuant to Section 3.01(b) hereof. A letter of transmittal will be properly completed only if
accompanied by Certificate or Certificates or instructions to transfer Book-Entry Shares
representing all shares of Plaza Common Stock covered thereby, subject to the provisions of
paragraph (d) of this Section 3.02.
(b) PPBI Deliveries. At the Effective Time, for the benefit of the holders of
Certificates and/or Book-Entry Shares, PPBI shall deliver to the Exchange Agent certificates, or
at PPBI’s option, evidence of shares in book entry form, representing the number of shares of PPBI
Common Stock issuable to the holders of Plaza Common Stock as the Merger Consideration, to
be given to the holders of Plaza Common Stock in exchange for their Certificates and Book-Entry
Shares as provided for in this Article III. The Exchange Agent shall not be entitled to vote or
exercise any rights of ownership with respect to the shares of PPBI Common Stock held by it from
time to time hereunder, except that it shall receive and hold all dividends or other distributions
paid or distributed with respect to such shares for the account of the Persons entitled thereto.
(c) Exchange Agent Deliveries.
(i) Each holder of an outstanding Certificate or Certificates or Book-
Entry Shares who has surrendered such Certificate or Certificates to the Exchange Agent will,
upon acceptance thereof by the Exchange Agent, be entitled to evidence of issuance in book entry
form, or upon written request of such holder, a certificate or certificates representing, the number
of whole shares of PPBI Common Stock into which the aggregate number of shares of Plaza
Common Stock previously represented by such Certificate or Certificates or Book-Entry Shares
#52027286_v14 13
surrendered shall have been converted pursuant to this Agreement and any other distribution
theretofore paid with respect to PPBI Common Stock issuable in the Merger, in each case, without
interest. The Exchange Agent shall accept such Certificates or Book-Entry Shares upon
compliance with such reasonable terms and conditions as the Exchange Agent may impose
consistent with the notice and form of letter of transmittal to effect an orderly exchange thereof in
accordance with normal exchange practices.
(ii) Each outstanding Certificate or Book-Entry Share which prior to the
Effective Time represented Plaza Common Stock and which is not surrendered to the Exchange
Agent in accordance with the procedures provided for herein shall, except as otherwise herein
provided, until duly surrendered to the Exchange Agent, be deemed to evidence ownership of the
number of shares of PPBI Common Stock into which such Plaza Common Stock shall have been
converted. After the Effective Time, there shall be no further transfer on the records of Plaza of
Certificates or Book-Entry Shares representing shares of Plaza Common Stock and, if such
Certificates or Book-Entry Shares are presented to Plaza for transfer, they shall be cancelled
against delivery of certificates for PPBI Common Stock as hereinabove provided. No dividends
which have been declared will be remitted to any Person entitled to receive shares of PPBI
Common Stock under Section 3.01 until such Person surrenders the Certificate or Certificates or
Book-Entry Shares representing Plaza Common Stock, at which time such dividends shall be
remitted to such Person, without interest.
(d) Lost or Destroyed Certificates; Issuances of PPBI Common Stock in New
Names. The Exchange Agent shall not be obligated to deliver a certificate or certificates
representing shares of PPBI Common Stock to which a holder of Plaza Common Stock would
otherwise be entitled as a result of the Merger until such holder surrenders the Certificate or
Certificates representing the shares of Plaza Common Stock for exchange as provided in this
Section 3.02, or, in default thereof, an appropriate affidavit of loss and indemnity agreement and/or
a bond in an amount as may be reasonably required in each case by PPBI. If any certificates
evidencing shares of PPBI Common Stock are to be issued in a name other than that in which the
Certificate evidencing Plaza Common Stock surrendered in exchange therefore is registered, it
shall be a condition of the issuance thereof that the Certificate so surrendered shall be properly
endorsed or accompanied by an executed form of assignment separate from the Certificate and
otherwise in proper form for transfer and that the Person requesting such exchange pay to the
Exchange Agent any transfer or other Tax required by reason of the issuance of a certificate for
shares of PPBI Common Stock in any name other than that of the registered holder of the
Certificate surrendered or otherwise establish to the satisfaction of the Exchange Agent that such
Tax has been paid or is not payable.
(e) Unclaimed Merger Consideration. The exchange of shares of Plaza
Common Stock for the Merger Consideration as provided in this Section 3.02 shall be administered
by the Exchange Agent until such time as any unclaimed portion thereof is delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws. Neither the Exchange
Agent nor any party to this Agreement shall be liable to any holder of stock represented by any
Certificate or Book-Entry Share for any consideration paid to a public official pursuant to
applicable abandoned property, escheat or similar laws. The Exchange Agent shall be entitled to
rely upon the stock transfer books of Plaza to establish the identity of those Persons entitled to
receive the consideration specified in this Agreement, which books shall be conclusive (absent
#52027286_v14 14
manifest error) with respect thereto. In the event of a dispute with respect to ownership of stock
represented by any Certificate or Book-Entry Share, the Exchange Agent shall be entitled to
deposit any consideration represented thereby in escrow with an independent third party and
thereafter be relieved with respect to any claims thereto.
3.03 Rights as Shareholders. At the Effective Time, holders of Plaza Common Stock
shall cease to be, and shall have no rights as, shareholders of Plaza other than to receive the
consideration provided for under this Article III.
3.04 No Fractional Shares. Notwithstanding any other provision of this Agreement,
neither certificates nor scrip for fractional shares of PPBI Common Stock shall be issued in the
Merger. Each holder of Plaza Common Stock who otherwise would have been entitled to a fraction
of a share of PPBI Common Stock (after taking into account all Certificates or Book-Entry Shares
delivered by such holder) shall receive in lieu thereof cash (without interest) in an amount
determined by multiplying the fractional share interest to which such holder would otherwise be
entitled by the PPBI Average Share Price, rounded to the nearest whole cent. No such holder shall
be entitled to dividends, voting rights or any other rights in respect of any fractional share.
3.05 Dissenting Shares. Notwithstanding any other provision of this Agreement, each
outstanding share of Plaza Common Stock held by a holder who has not voted in favor of approval
of this Agreement or consented thereto in writing and who has properly exercised appraisal rights
of such shares in accordance with Section 262 of the DGCL (such shares of Plaza Common Stock
being referred to collectively as the “Dissenting Shares” until such time as such holder fails to
perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such
shares of Plaza Common Stock) shall not be converted into a right to receive a portion of the
Merger Consideration, but instead shall be entitled to only such rights as are granted by Section
262 of the DGCL; provided, however, that if, after the Effective Time, such holder fails to perfect,
withdraws or loses such holder’s right to appraisal pursuant to Section 262 of the DGCL or if a
court of competent jurisdiction shall determine that such holder is not entitled to the relief provided
by Section 262 of the DGCL, such shares of Plaza Common Stock shall be treated as if they had
been converted as of the Effective Time into the right to receive the portion of the Merger
Consideration, if any, to which such holder is entitled pursuant to Section 3.01(b), without interest
thereon. Plaza shall give PPBI prompt notice upon receipt by Plaza of any such written demands
for payment of the fair value of such shares of Plaza Common Stock and of withdrawals of such
demands and any other instruments provided pursuant to the DGCL. If any holder of Dissenting
Shares shall have effectively withdrawn or lost the right to dissent (through failure to perfect or
otherwise), the Dissenting Shares held by such holder shall be converted on a share by share basis
into the right to receive the Merger Consideration in accordance with the applicable provisions of
this Agreement. Any payments made in respect of Dissenting Shares shall be made by PPBI or
the Surviving Corporation within the time period set forth in the DGCL.
3.06 Anti-Dilution Provisions. If, between the date hereof and the Effective Time, the
shares of PPBI Common Stock shall be changed into a different number or class of shares by
reason of any reclassification, recapitalization, split-up, combination, exchange of shares or
readjustment, or a stock dividend thereon shall be declared with a record date within said period,
the Exchange Ratio shall be adjusted accordingly; provided that a bona fide offering or sale of
PPBI Common Stock for fair value received shall not be deemed a reclassification,
#52027286_v14 15
recapitalization, split-up, combination, exchange of shares or readjustment of the PPBI Common
Stock.
3.07 Withholding Rights. PPBI (through the Exchange Agent, if applicable) shall be
entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement
to any holder of shares of Plaza Common Stock such amounts as PPBI determines is required
under the Code or any state, local or foreign Tax law or regulation thereunder to deduct and
withhold with respect to the making of such payment, and to collect any necessary Tax forms or
other necessary information. In the event PPBI reasonably determines that it is so required to
deduct or withhold an amount for or on account of any Tax from any consideration payable or
otherwise deliverable pursuant to this Agreement, PPBI shall notify Plaza of its determination and
the parties shall cooperate in good faith to minimize to the extent permissible the amount of any
such deduction or withholding, including providing any certificates or forms that are reasonably
requested to establish an exemption from (or reduction in) any deduction or withholding. Any
amounts so withheld shall be timely remitted to the applicable Governmental Authority and shall
be treated for all purposes of this Agreement as having been paid to the holder of Plaza Common
Stock in respect of which such deduction and withholding was made by PPBI.
3.08 Plaza Options, Plaza Warrants and Plaza Restricted Stock.
(a) At the Effective Time, each Plaza Option which is outstanding and
unexercised immediately prior to the Effective Time shall be cancelled in exchange for the right
to receive a single lump sum cash payment, equal to the product of (i) the number of shares of
Plaza Common Stock subject to such Plaza Option immediately prior to the Effective Time, and
(ii) the excess, if any, of (A) the PPBI Average Share Price multiplied by the Exchange Ratio over
(B) the exercise price per share of such Plaza Option (the “Option Merger Consideration”), less
any applicable Taxes required to be withheld with respect to such payment. If the exercise price
per share of any such Plaza Option is equal to or greater than the PPBI Average Share Price
multiplied by the Exchange Ratio, such Plaza Option shall be canceled without any cash payment
being made in respect thereof. Plaza shall use its reasonable best efforts to obtain the written
acknowledgment of each holder of a then-outstanding Plaza Option with regard to the cancellation
of such Plaza Option and the payment therefor in accordance with the terms of this Agreement.
Subject to the foregoing, the Plaza Stock-Based Plans and all Plaza Options issued thereunder shall
terminate at the Effective Time.
(b) At the Effective Time, each Plaza Warrant which is outstanding and
unexercised immediately prior to the Effective Time shall be cancelled in exchange for the right
to receive a single lump sum cash payment, equal to the product of (i) the number of shares of
Plaza Common Stock subject to such Plaza Warrant immediately prior to the Effective Time, and
(ii) the excess, if any, of (A) the PPBI Average Share Price multiplied by the Exchange Ratio over
(B) the exercise price per share of such Plaza Warrant (the “Warrant Merger Consideration”), less
any applicable Taxes required to be withheld with respect to such payment. If the exercise price
per share of any such Plaza Warrant is equal to or greater than the PPBI Average Share Price
multiplied by the Exchange Ratio, such Plaza Warrant shall be canceled without any cash payment
being made in respect thereof. Plaza shall use its reasonable best efforts to obtain the written
acknowledgement of each holder of a then-outstanding Plaza Warrant with regard to the
#52027286_v14 16
cancellation of such Plaza Warrant and the payment therefor in accordance with the terms of this
Agreement.
(c) Immediately prior to the Effective Time, any vesting conditions applicable
to each award of restricted shares of Plaza Common Stock granted under a Plaza Stock-Based Plan
(the “Plaza Restricted Stock”) shall, automatically and without any action on the part of the holder
thereof and consistent with the terms of the Plaza Stock-Based Plan, accelerate in full and such
Plaza Restricted Stock shall become free of any restrictions and any repurchase right shall lapse,
and the holder thereof shall be entitled to receive shares of PPBI Common Stock in accordance
with the Exchange Ratio (provided that any fractional shares of PPBI Common Stock shall be
treated as set forth in Section 3.04), less any applicable Taxes required to be withheld with respect
to such vesting.
3.09 Reservation of Shares. Prior to the Closing, the PPBI Board shall reserve for
issuance a sufficient number of shares of PPBI Common Stock (i) for the purpose of issuing its
shares in exchange for shares of Plaza Common Stock in the Merger and (ii) to convert the Plaza
Restricted Stock into shares of PPBI Common Stock.
ARTICLE IV
ACTIONS PENDING ACQUISITION
4.01 Forbearances of Plaza. From the date hereof until the Effective Time, except as
expressly contemplated or permitted by this Agreement, as Previously Disclosed, as required by
applicable law, or as consented to by PPBI in writing, Plaza will not, and will cause each of its
Subsidiaries not to:
(a) Ordinary Course. Conduct its business other than in the ordinary and usual
course consistent with past practice or fail to use commercially reasonable best efforts to preserve
its business organization, keep available the present services of its employees (except in the case
of terminations of employees for cause) and preserve for itself and PPBI the goodwill of the
customers of Plaza and its Subsidiaries and others with whom business relations exist.
(b) Capital Stock. Other than pursuant to Rights set forth on Section 4.01(b) of
Plaza’s Disclosure Schedule and outstanding on the date hereof, (i) issue, sell or otherwise permit
to become outstanding, or authorize the creation of, any additional shares of stock or any Rights
or (ii) permit any additional shares of stock to become subject to grants of employee or director
stock options or other Rights.
(c) Dividends; Reclassifications; Etc.
(i) Make, declare, pay or set aside for payment any dividend on or in
respect of, or declare or make any distribution on any shares of Plaza Common Stock.
(ii) Directly or indirectly adjust, split, combine, redeem, reclassify,
purchase or otherwise acquire, any shares of Plaza Common Stock.
#52027286_v14 17
(d) Compensation; Employment Agreements; Etc. Enter into or amend or
renew any employment, consulting, severance, change in control, retention, bonus, salary
continuation or similar agreements or arrangements with any director or executive officer of Plaza
or its Subsidiaries, grant or announce any salary or wage increase, grant or announce any severance
or termination pay (other than pursuant to a severance arrangement or policy disclosed in Section
4.01(d) of Plaza’s Disclosure Schedule), or increase or announce any increase in any employee
benefit (including incentive or bonus payments), except for changes that are required by applicable
law or payments made in accordance with Plaza’s existing employee benefit plans and set forth in
Section 4.01(d) of Plaza’s Disclosure Schedule.
(e) Hiring. Hire any person as a Senior Officer of Plaza or any of its
Subsidiaries or promote any employee to a Senior Officer position, except (i) to satisfy contractual
obligations existing as of the date hereof and set forth on Section 4.01(e) of Plaza’s Disclosure
Schedule and (ii) persons hired to fill any Senior Officer vacancies either existing as of the date
hereof and set forth in Section 4.01(e) of Plaza’s Disclosure Schedule or arising after the date
hereof whose employment is terminable at the will of Plaza or a Subsidiary of Plaza and who are
not subject to or eligible for any severance, change in control, bonus or similar benefits or
payments that would become payable as a result of the Transaction, or consummation thereof, or
enter into any agreement with a labor union, guild or association representing any employee.
(f) Benefit Plans. Except as set forth in Section 4.01(f) of Plaza’s Disclosure
Schedule, enter into, establish, adopt, amend or terminate, or make any contributions to any
pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation,
consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan
or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any
current or former director, officer or employee of Plaza or take any action to accelerate the vesting
or exercisability of stock options, restricted stock, restricted stock units or other compensation or
benefits payable thereunder, in each case except (i) to satisfy contractual obligations existing as of
the date hereof and set forth in Section 4.01(f) of Plaza’s Disclosure Schedule or (ii) as may be
required by applicable law.
(g) Dispositions. Sell, transfer, mortgage, encumber or otherwise dispose of or
discontinue any of its material assets, deposits, business or properties, except for sales, transfers,
mortgages, encumbrances, dispositions or discontinuances which are in the ordinary course of
business and consistent with past practices and are not material to Plaza and its Subsidiaries taken
as a whole.
(h) Acquisitions. Acquire (other than by way of foreclosures or acquisitions of
control in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in good
faith, in each case in the ordinary and usual course of business consistent with past practice),
including without limitation, by merger or consolidation or by investment in a partnership or joint
venture, all or any portion of the assets, business, securities, deposits or properties of any other
entity.
(i) Capital Expenditures. Except as set forth in Section 4.01(i) of Plaza’s
Disclosure Schedule, make any capital expenditures, other than capital expenditures in the
#52027286_v14 18
ordinary course of business consistent with past practice in amounts not exceeding $50,000
individually or $100,000 in the aggregate.
(j) Governing Documents. Amend the Plaza Articles, the Plaza Bylaws or the
articles of incorporation or bylaws (or equivalent documents) of any Subsidiary of Plaza or enter
into a plan of consolidation, merger, share exchange or reorganization with any Person, or a letter
of intent or agreement in principle with respect thereto.
(k) Accounting Methods. Implement or adopt any change in its accounting
principles, practices or methods, other than as may be required by changes in laws or regulations
or GAAP.
(l) Contracts. Except as otherwise permitted under Sections 4.01 hereof, enter
into, cancel, fail to renew or terminate any Material Contract or amend or modify in any material
respect any of its existing Material Contracts.
(m) Claims. Except as set forth in Section 4.01(m) of Plaza’s Disclosure
Schedule, enter into any settlement or similar agreement with respect to any action, suit,
proceeding, order or investigation to which Plaza or any of its Subsidiaries is or becomes a party
after the date of this Agreement, which settlement, agreement or action involves payment by Plaza
or any of its Subsidiaries of an amount which exceeds $50,000 and/or would impose any material
restriction on the business of Plaza or any of its Subsidiaries or create precedent for claims that are
reasonably likely to be material to Plaza and its Subsidiaries taken as a whole.
(n) Banking Operations. Except as set forth in Section 4.01(n) of Plaza’s
Disclosure Schedule, enter into any new material line of business; introduce any material new
products or services; change its material lending, investment, underwriting, loan, deposit or fee
pricing, servicing, risk and asset liability management and other material banking and operating
policies, except as required by applicable law, regulation or policies imposed by any Governmental
Authority, or the manner in which its investment securities or loan portfolio is classified or
reported; or invest in any mortgage-backed or mortgage-related security that would be risk–
weighted over 100% according to BASEL III regulatory capital guidelines; or file any application
or enter into any contract with respect to the opening, relocation or closing of, or open, relocate or
close, any branch, office, service center or other facility.
(o) Marketing. Except as set forth in Section 4.01(o) of Plaza’s Disclosure
Schedule, introduce any material marketing campaigns or any material new sales compensation or
incentive programs or arrangements (except those the material terms of which have been fully
disclosed in writing to PPBI prior to the date hereof).
(p) Derivatives Contracts. Enter into any Derivatives Contract.
(q) Indebtedness. Except as set forth in Section 4.01(q) of Plaza’s Disclosure
Schedule, incur any indebtedness for borrowed money (other than deposits, federal funds
purchased, cash management accounts, Federal Home Loan Bank and FRB borrowings that mature
within 90 days and that have no put or call features and securities sold under agreements to
repurchase that mature within 90 days, in each case, in the ordinary course of business consistent
with past practice); or assume, guarantee, endorse or otherwise as an accommodation become
#52027286_v14 19
responsible for the obligations of any other Person, other than with respect to the collection of
checks and other negotiable instruments in the ordinary course of business consistent with past
practice.
(r) Investment Securities. (i) Acquire (other than by way of foreclosures or
acquisitions in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in
good faith, in each case in the ordinary course of business consistent with past practice) any debt
security or Equity Investment or (ii) dispose of any debt security or Equity Investment.
(s) Loans. (i) Except as set forth in Section 4.01(s) of Plaza’s Disclosure
Schedule, make, renew or otherwise modify any loan, loan commitment, letter of credit or other
extension of credit (collectively, “Loans”), other than Loans made in the ordinary course of
business, consistent with past practice, that are not in excess of $5.0 million individually; (ii) take
any action that would result in any discretionary release of collateral or guarantees or otherwise
restructure the respective amounts set forth in clause (i) above; (iii) enter into any Loan
securitization or create any special purpose funding entity; or (iv) enter into any Loan participation
agreement or arrangement, other than a loan participation entered into in the ordinary course of
business consistent with past practice where Plaza’s or any Subsidiary’s exposure does not exceed
$1.0 million. Plaza and its Subsidiaries can make, renew or modify Loans or Loan participations
that exceed the foregoing dollar limitations to the extent Plaza provides to PPBI in writing a
complete Loan package for such Loan or Loan participation and PPBI does not object to such
proposed Loan or Loan participation within three (3) Business Days of receipt of such written
notice.
(t) Investments in Real Estate. Make any investment or commitment to invest
in real estate or in any real estate development project (other than by way of foreclosure or
acquisitions in a bona fide fiduciary capacity or in satisfaction of a debt previously contracted in
good faith, in each case in the ordinary course of business consistent with past practice).
(u) Tax Elections. Make or change any Tax election, settle or compromise any
Tax liability of Plaza or any of its Subsidiaries, agree to an extension or waiver of the statute of
limitations with respect to the assessment or determination of an amount of Taxes of Plaza or any
of its Subsidiaries (or the assets and liabilities of Plaza or any of its Subsidiaries), enter into any
closing agreement with respect to any amount of Taxes or surrender any right to claim a Tax
refund, adopt or change any method of accounting with respect to Taxes, or file any amended Tax
Return.
(v) Antitakeover Statutes. Take any action (i) that would cause this Agreement
or the Transaction to be subject to the provisions of any state antitakeover law or state law that
purports to limit or restrict business combinations or the ability to acquire or vote shares or (ii) to
exempt or make not subject to the provisions of any state antitakeover law or state law that purports
to limit or restrict business combinations or the ability to acquire or vote shares, any Person (other
than PPBI or its Subsidiaries) or any action taken thereby, which Person or action would have
otherwise been subject to the restrictive provisions thereof and not exempt therefrom.
#52027286_v14 20
(w) Transactions with Insiders. Make or propose to make any loan to or enter
into any transaction with Plaza, any of its Subsidiaries, or any of their respective directors or
executive officers or any Affiliate thereof.
(x) Adverse Actions. Take any action that would or is reasonably likely to
result in (i) the Merger not qualifying as a reorganization within the meaning of Section 368(a) of
the Code, (ii) any of its representations and warranties set forth in this Agreement being or
becoming untrue in any material respect at any time at or prior to the Effective Time, (iii) any of
the conditions to the Merger set forth in Article VII not being satisfied, (iv) a material violation of
any provision of this Agreement, except as may be required by applicable law or regulation, (v) a
material delay in the ability of PPBI or Plaza to perform any of their obligations under this
Agreement on a timely basis, or (vi) a material delay in the ability of PPBI to obtain any necessary
approvals of any Governmental Authority required for the transactions contemplated hereby.
(y) Commitments. Enter into any contract with respect to, or otherwise agree
or commit to do, any of the foregoing.
4.02 Forbearances of PPBI. From the date hereof until the Effective Time, except as
expressly contemplated or permitted by this Agreement, as required by applicable law, or without
the prior written consent of Plaza, PPBI will not, and will cause each of its Subsidiaries not to:
(a) Ordinary Course. Conduct its business other than in the ordinary and usual
course consistent with past practice or fail to use commercially reasonable best efforts to preserve
its business organization and preserve for itself and Plaza the goodwill of the customers of PPBI
and its Subsidiaries and others with whom business relations exist.
(b) Adverse Actions. Take any action that would or is reasonably likely to
result in (i) the Merger not qualifying as a reorganization within the meaning of Section 368(a) of
the Code, (ii) any of its representations and warranties set forth in this Agreement being or
becoming untrue in any material respect at any time at or prior to the Effective Time, (iii) any of
the conditions to the Merger set forth in Article VII not being satisfied, (iv) a material violation of
any provision of this Agreement, except as may be required by applicable law or regulation or (v)
a material delay in the ability of PPBI or Plaza to perform any of their obligations under this
Agreement on a timely basis, or (vi) a material delay in the ability of PPBI to obtain any necessary
approvals of any Governmental Authority required for the transactions contemplated hereby.
(c) Commitments. Enter into any contract with respect to, or otherwise agree
or commit to do, any of the foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Disclosure Schedules. On or prior to the date hereof, PPBI has delivered to Plaza
a schedule and Plaza has delivered to PPBI a schedule (each respectively, its “Disclosure
Schedule”) setting forth, among other things, items the disclosure of which is necessary or
appropriate either in response to an express disclosure requirement contained in a provision hereof
or as an exception to one or more representations or warranties contained in Section 5.03 or 5.04
#52027286_v14 21
or to one or more of its covenants contained in Articles IV or VI; provided, however, that the mere
inclusion of an item in a Disclosure Schedule as an exception to a representation or warranty shall
not be deemed an admission by a party that such item represents a material exception or fact, event
or circumstance or that, absent such inclusion in the Disclosure Schedule, such item is or would
be reasonably likely to result in a Material Adverse Effect.
5.02 Standard. Solely for the purposes of determining whether the conditions set forth
in Sections 7.02(a) or 7.03(a), as the case may be, have been satisfied (and without otherwise
qualifying any representation or warranty made on the date hereof), no representation or warranty
of Plaza on the one hand or PPBI on the other hand contained in Sections 5.03 or 5.04, respectively,
other than the representations of Plaza contained in Section 5.03(b), which shall be true in all
respects, except to a de minimis extent (relative to Section 5.03(b) taken as a whole), and the
representations of Plaza contained in Section 5.03(m)(v), which shall be true in all material
respects, shall be deemed untrue or incorrect for purposes of Sections 7.02(a) or 7.03(a), and no
party hereto shall be deemed to have breached a representation or warranty for purposes of such
Sections, as a consequence of the existence of any fact, event or circumstance unless such fact,
circumstance or event, individually or taken together with all other facts, events or circumstances
inconsistent with any representation or warranty contained in Sections 5.03 or 5.04, has had or is
reasonably likely to have a Material Adverse Effect on the party making such representation or
warranty.
5.03 Representations and Warranties of Plaza. Subject to Sections 5.01 and 5.02, Plaza
hereby represents and warrants to PPBI:
(a) Organization, Standing and Authority. Plaza is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware. Plaza is
duly licensed or qualified to do business and is in good standing in each jurisdiction where its
ownership or leasing of property or assets or the conduct of its business requires it to be so licensed
or qualified, except where the failure to be so licensed or qualified would not have nor reasonably
be expected to have a Material Adverse Effect on Plaza. Plaza has in effect all federal, state, local
and foreign governmental authorizations necessary for it to own or lease its properties and assets
and to carry on its business as now conducted. The copies of the Plaza Articles and Plaza Bylaws
which have previously been made available to PPBI are true, complete and correct copies of such
documents as in effect on the date of this Agreement. The minute books of Plaza and each of its
Subsidiaries previously made available to PPBI contain true, complete and correct records in all
material respects of all meetings and other material corporate actions held or taken of their
respective shareholders and Boards of Directors (including committees of their respective Board
of Directors) through the date hereof.
(b) Plaza Capital Stock. The authorized capital stock of Plaza consists solely
of 50,000,000 shares of Plaza Common Stock, of which 30,133,293 shares are issued and
outstanding as of the date hereof, and 1,000,000 shares of Plaza Preferred Stock, none of which
were issued and outstanding as of the date hereof. As of the date hereof, no shares of Plaza
Common Stock were held in treasury by Plaza or otherwise directly or indirectly owned by Plaza.
The outstanding shares of Plaza Common Stock have been duly authorized and validly issued and
are fully paid and non-assessable, and none of the outstanding shares of Plaza Common Stock have
been issued in violation of the preemptive rights of any Person. Section 5.03(b) of Plaza’s
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Disclosure Schedule sets forth, as of the date hereof, for each (i) Plaza Option, the name of the
grantee, the date of the grant, the status of the option grant as qualified or non-qualified under
Section 422 of the Code, the number of shares of Plaza Common Stock subject to each Plaza
Option, the number of shares of Plaza Common Stock subject to Plaza Options that are currently
exercisable and the exercise or strike price per share, (ii) share of Plaza Restricted Stock, the name
of the grantee, the date of the grant, the total number of shares of Plaza Restricted Stock awarded
to such grantee, and the vesting schedule or performance requirements applicable to each share of
Plaza Restricted Stock, and (iii) Plaza Warrant, the name of the holder, the date of issuance, the
number of shares of Plaza Common Stock subject to each Plaza Warrant and the number of shares
of Plaza Common Stock subject to Plaza Warrants that are currently exercisable and the exercise
or strike price per share. Each Plaza Option (i) currently has an exercise price that is the same as
when first issued and such exercise price is at least equal to the fair market value of the underlying
shares of Plaza Common Stock as of the grant date; and (ii) has been issued in compliance with
applicable laws. Except as set forth in this Section 5.03(b), there are no shares of Plaza Common
Stock reserved for issuance (other than additional shares of Plaza Common Stock reserved for
issuance in future awards under the Plaza Stock-Based Plans), Plaza does not have any Rights
issued or outstanding with respect to Plaza Common Stock, Plaza does not have any commitment
to authorize, issue or sell any Plaza Common Stock or Rights and Plaza does not have any restricted
stock units issued or outstanding. No bonds, debentures, notes or other indebtedness having the
right to vote on any matters on which shareholders of Plaza may vote are outstanding.
(c) Subsidiaries.
(i) (A) Section 5.03(c)(i)(A) of Plaza’s Disclosure Schedule sets forth
a list of all of Plaza’s Subsidiaries together with the employer identification number, corporate
address, the number of shares and class of capital stock issued and outstanding and the jurisdiction
of organization of each such Subsidiary, (B) Plaza owns, directly or indirectly, all the issued and
outstanding Equity Securities of each of its Subsidiaries, (C) no Equity Securities of any of its
Subsidiaries are or may become required to be issued (other than to Plaza) by reason of any Right
or otherwise, (D) there are no contracts, commitments, understandings or arrangements by which
any of its Subsidiaries is or may be bound to sell or otherwise transfer any of its Equity Securities
(other than to Plaza or any of its wholly owned Subsidiaries), (E) there are no contracts,
commitments, understandings, or arrangements relating to Plaza’s rights to vote or to dispose of
such securities and (F) all the Equity Securities of Plaza’s Subsidiaries held by Plaza or its
Subsidiaries are fully paid and nonassessable (except for assessments required under the CFC with
respect to Plaza Bank’s capital stock) and are owned by Plaza or its Subsidiaries free and clear of
any Liens. No bonds, debentures, notes or other indebtedness having the right to vote on any
matters on which stockholders of any of the Plaza Subsidiaries may vote are outstanding.
(ii) Except as set forth in Section 5.03(c)(ii) of Plaza’s Disclosure
Schedule and except for securities and other interests held in a fiduciary capacity and beneficially
owned by third parties or taken in consideration of debts previously contracted, ownership interests
in Plaza’s Subsidiaries and stock in the FHLB, Plaza does not own beneficially, directly or
indirectly, any Equity Securities or similar interests of any Person or any interest in a partnership
or joint venture of any kind.
#52027286_v14 23
(iii) Each of Plaza’s Subsidiaries has been duly organized, is validly
existing and is in good standing, in each case under the laws of the jurisdiction of its organization,
and is duly licensed or qualified to do business and in good standing in the jurisdictions where its
ownership or leasing of property or the conduct of its business requires it to be so licensed or
qualified, except where the failure to be so licensed or qualified would not have nor reasonably be
expected to have a Material Adverse Effect on Plaza. Each of Plaza’s Subsidiaries has in effect all
federal, state, local and foreign governmental authorizations necessary for it to own or lease its
properties and assets and to carry on its business as now conducted.
(iv) The deposit accounts of Plaza Bank are insured by the FDIC in the
manner and to the maximum extent provided by applicable law, and Plaza Bank has paid all deposit
insurance premiums and assessments required by applicable laws and regulations.
(d) Corporate Power. Each of Plaza and its Subsidiaries has the corporate
power and corporate authority to carry on its business as it is now being conducted and to own all
its properties and assets; and Plaza has the corporate power and corporate authority to execute,
deliver and perform its obligations under this Agreement and to consummate the Transaction, and
to cause Plaza Bank to consummate the Bank Merger Agreement, and Plaza Bank has the corporate
power and authority to execute, deliver and perform its obligations under the Bank Merger
Agreement, in each case, subject to receipt of all necessary approvals of Governmental Authorities
and the approval of Plaza’s shareholders of this Agreement.
(e) Corporate Authority. Subject to the approval of this Agreement by the
holders of the outstanding Plaza Common Stock, this Agreement and the Transaction and the Bank
Merger and the Bank Merger Agreement have been authorized by all necessary corporate action
of Plaza and Plaza Bank and the Plaza Board and Plaza Bank Board on or prior to the date hereof.
Plaza has duly executed and delivered this Agreement and, assuming due authorization, execution
and delivery by PPBI, this Agreement is a valid and legally binding obligation of Plaza,
enforceable in accordance with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of
general applicability relating to or affecting creditors’ rights or by general equity principles).
(f) Regulatory Approvals; No Defaults.
(i) Except as set forth in Section 5.03(f) of Plaza’s Disclosure Schedule,
no consents or approvals of, or waivers by, or notices to, or filings or registrations with, any
Governmental Authority or with any third party are required to be made or obtained by Plaza or
any of its Subsidiaries in connection with the execution, delivery or performance by Plaza of this
Agreement and by Plaza Bank of the Bank Merger Agreement, or to consummate the Transaction,
except for (A) filings of applications or notices with, and approvals or waivers by, the FRB and
the DBO, as required, (B) filings with the SEC and state securities authorities, as applicable, in
connection with the issuance of PPBI Common Stock in the Merger, (C) approval of listing of
such PPBI Common Stock on the Nasdaq, (D) the filing of (1) the Certificate of Merger with the
Secretary of State of the State of Delaware pursuant to the DGCL and (2) the Bank Merger
Agreement with the Secretary of State of the State of California and the DBO pursuant to the
CGCL and CFC, and (E) the Shareholder Approval of this Agreement by delivery of the
Shareholder Consents. As of the date hereof, Plaza is not aware of any reason why the approvals
#52027286_v14 24
set forth above and referred to in Section 7.01(b) will not be received in a timely manner and
without the imposition of a condition, restriction or requirement of the type described in Section
7.01(b).
(ii) Subject to receipt, or the making, of the consents, approvals, waivers
and filings referred to in the preceding paragraph and the expiration of related waiting periods, the
execution, delivery and performance of this Agreement by Plaza and the Bank Merger Agreement
by Plaza Bank and the consummation of the Transaction do not and will not (A) constitute a breach
or violation of, or a default under, or give rise to any Lien, any acceleration of remedies or any
right of termination under, any law, code, ordinance, rule or regulation or any judgment, decree,
injunction, order, governmental permit or license, or agreement, indenture or instrument of Plaza
or any of its Subsidiaries or to which Plaza or any of its Subsidiaries or any of their respective
assets or properties is subject or bound, (B) constitute a breach or violation of, or a default under,
the articles of incorporation or bylaws (or similar governing documents) of Plaza or any of its
Subsidiaries or (C) require any consent or approval under any such law, code, ordinance, rule,
regulation, judgment, decree, injunction, order, governmental permit or license, agreement,
indenture or instrument.
(g) Financial Reports; Undisclosed Liabilities; Internal Controls.
(i) Each of the consolidated balance sheets contained in the Plaza
Financial Statements (including the related notes and schedules thereto) fairly presents, or will
fairly present, the consolidated financial position of Plaza and its Subsidiaries as of its date, and
each of the consolidated statements of income, consolidated statements of comprehensive income,
consolidated statements of equity and consolidated statements of cash flows in such Plaza
Financial Statements (including any related notes and schedules thereto) fairly presents, or will
fairly present, the consolidated results of operations, changes in shareholders’ equity and other
comprehensive income and cash flows, as the case may be, of Plaza and its Subsidiaries for the
periods to which they relate, in each case in accordance with GAAP consistently applied during
the periods involved, except in each case as may be noted therein and subject, in the case of
unaudited consolidated financial statements that are part of the Plaza Financial Statements, to
normal year-end adjustments. Each of such financial statements (including any related notes and
schedules thereto) complies in all material respects with applicable accounting requirements. The
books and records of Plaza and its Subsidiaries have been, and are being, maintained in all material
respects in accordance with GAAP and any other applicable legal and accounting requirements
and reflect only actual transactions.
(ii) None of Plaza nor any of its Subsidiaries is required to file periodic
reports with any Governmental Authority pursuant to the Exchange Act.
(iii) Except as set forth on the unaudited consolidated balance sheet of
Plaza dated as of June 30, 2017, neither Plaza nor any of its Subsidiaries has any material liability
(whether absolute, contingent or accrued or otherwise and whether due or to become due) that
would be required to be reflected on a balance sheet or in notes thereto prepared in accordance
with GAAP, other than liabilities (A) incurred after June 30, 2017 in the ordinary course of
business consistent with past practice or (B) incurred pursuant to or provided for in this Agreement
#52027286_v14 25
and, to Plaza’s Knowledge, there is no existing condition, event or circumstance as of the date
hereof which could result in a Material Adverse Effect in the future.
(iv) Since June 30, 2017, (A) Plaza and its Subsidiaries have conducted
their respective businesses in the ordinary and usual course consistent with past practice, (B)
except as set forth in Section 5.03(g)(iv) of Plaza’s Disclosure Schedule, neither Plaza nor any of
its Subsidiaries has taken nor permitted or entered into any contract with respect to, or otherwise
agreed or committed to do or take, any action that, if taken after the date hereof, would constitute
a breach of any of the covenants in Section 4.01 and (C) no event has occurred or circumstance
arisen that, individually or taken together with all other facts, circumstances and events (described
in any paragraph of this Section 5.03 or otherwise), has had or is reasonably likely to have a
Material Adverse Effect with respect to Plaza.
(v) No agreement pursuant to which any Loans or other assets have been
or shall be sold by Plaza or its Subsidiaries entitled the buyer of such Loans or other assets, unless
there is material breach of a representation or covenant by Plaza or its Subsidiaries, to cause Plaza
or its Subsidiaries to repurchase such Loan or other asset or the buyer to pursue any other form of
recourse against Plaza or its Subsidiaries. Section 5.03(g)(v) of Plaza’s Disclosure Schedule sets
forth all cash, stock or other dividend or any other distribution with respect to the capital stock of
Plaza or its Subsidiaries that has been declared, set aside or paid since January 1, 2014, as well as
all shares of capital stock of Plaza or its Subsidiaries that have been purchased, redeemed or
otherwise acquired, directly or indirectly, by Plaza or any of its Subsidiaries since January 1, 2014.
(vi) The records, systems, controls, data and information of Plaza and its
Subsidiaries are recorded, stored, maintained and operated under means (including any electronic,
mechanical or photographic process, whether computerized or not) that are under the exclusive
ownership and direct control of Plaza or its Subsidiaries (either directly or through Plaza’s third
party data processing service provider) or its accountants (including all means of access thereto
and therefrom), except for any non-exclusive ownership and non-direct control that would not
reasonably be expected to have a material adverse effect on the system of internal accounting
controls described below in this Section 5.03(g)(vi). Plaza (A) has implemented and maintains
disclosure controls and procedures to ensure that material information relating to Plaza and its
Subsidiaries is made known to the Chief Executive Officer and the Chief Financial Officer of Plaza
by others within Plaza or its Subsidiaries and (B) has disclosed, based on its most recent evaluation
prior to the date hereof, to Plaza’s outside auditors and the audit committee of the Plaza Board (x)
any significant deficiencies and material weaknesses in the design or operation of internal controls
over financial reporting which are reasonably likely to adversely affect Plaza’s ability to record,
process, summarize and report financial information and (y) any fraud, whether or not material,
that involves management or other employees who have a significant role in Plaza’s internal
controls over financial reporting. These disclosures were made in writing by management to
Plaza’s auditors and audit committee and a copy has previously been made available to PPBI.
(vii) Since January 1, 2014, (A) neither Plaza nor any of its Subsidiaries
nor, to the Knowledge of Plaza, any director, officer, employee, auditor, accountant or
representative of Plaza or any of its Subsidiaries, has received or otherwise had or obtained
Knowledge of any material complaint, allegation, assertion or claim, whether written or oral,
regarding the accounting or auditing practices, procedures, methodologies or methods of Plaza or
#52027286_v14 26
any of its Subsidiaries or their respective internal accounting controls, including any material
complaint, allegation, assertion or claim that Plaza or any of its Subsidiaries, has engaged in
questionable accounting or auditing practices, and (B) no attorney representing Plaza or any of its
Subsidiaries, whether or not employed by Plaza or any of its Subsidiaries, has reported evidence
of a material violation of securities laws, breach of fiduciary duty or similar violation by Plaza or
any of its Subsidiaries or their respective officers, directors, employees or agents to the Plaza Board
or any committee thereof or, to the Knowledge of Plaza, to any director or officer of Plaza or any
of its Subsidiaries.
(h) Legal Proceedings. Section 5.03(h) of Plaza’s Disclosure Schedule lists all
litigation, arbitration, claims or other proceedings before any court or Governmental Authority that
is pending against Plaza or any of its Subsidiaries as of the date hereof. Except as set forth in
Section 5.03(h) of Plaza’s Disclosure Schedule, no litigation, arbitration, claim or other proceeding
before any court or Governmental Authority is pending against Plaza or any of its Subsidiaries
and, to Plaza’s Knowledge, no such litigation, arbitration, claim or other proceeding has been
threatened. Neither Plaza nor any of its Subsidiaries nor any of their respective properties is a
party to or subject to any order, judgment, decree or regulatory restriction that, individually or in
the aggregate, has had or could reasonably be expected to have a Material Adverse Effect with
respect to Plaza.
(i) Regulatory Matters.
(i) Since January 1, 2014, Plaza and its Subsidiaries have duly filed
with the appropriate regulatory authorities in substantially correct form the monthly, quarterly and
annual reports required to be filed under applicable laws and regulations, and such reports were in
all material respects complete and accurate and in compliance in all material respects with the
requirements of applicable laws and regulations, and Plaza has previously delivered or made
available to PPBI accurate and complete copies of all such reports. In connection with the most
recent examination of Plaza and its Subsidiaries by the appropriate regulatory authorities, neither
Plaza nor any of its Subsidiaries was required to correct or change any action, procedure or
proceeding which Plaza believes in good faith has not been now corrected or changed, other than
corrections or changes which, if not made, either individually or in the aggregate, would not have
a Material Adverse Effect on Plaza.
(ii) Except as set forth in Section 5.03(i)(ii) of Plaza’s Disclosure
Schedule, neither Plaza nor any of its Subsidiaries nor any of their respective properties is a party
to or is subject to any order, decree, directive, agreement, memorandum of understanding or
similar arrangement with, or a commitment letter or similar submission to, or extraordinary
supervisory letter from, nor has Plaza or any of its Subsidiaries adopted any policies, procedures
or board resolutions at the request or suggestion of, any Governmental Authority. Plaza and its
Subsidiaries have paid all assessments made or imposed by any Governmental Authority.
(iii) Neither Plaza nor any of its Subsidiaries has been advised by, nor
does it have any Knowledge of facts which could give rise to an advisory notice by, any
Governmental Authority that such Governmental Authority is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting) any such order, decree, directive,
#52027286_v14 27
agreement, memorandum of understanding, commitment letter, supervisory letter or similar
submission or any request for the adoption of any policy, procedure or board resolution.
(iv) (A) Except as set forth in Section 5.03(i)(iv)(A) of Plaza’s
Disclosure Schedule, no Governmental Authority has initiated since January 1, 2014 or has
pending any proceeding, enforcement action or, to the Knowledge of Plaza, investigation or
inquiry into the business, operations, policies, practices or disclosures of Plaza or any of its
Subsidiaries (other than normal examinations conducted by a Governmental Authority in the
ordinary course of the business of Plaza and its Subsidiaries), or, to the Knowledge of Plaza,
threatened any of the foregoing, and (B) there is no material unresolved violation, criticism,
comment or exception by any Governmental Authority with respect to any report or statement
relating to any examinations or inspections of Plaza or any of its Subsidiaries.
(v) Plaza Bank has not provided bank accounts or banking services to
any Third-Party Payment Processor for at least three years prior to the date hereof, and to the extent
Plaza Bank or any predecessor banks acquired any other bank that provided bank accounts or
banking services to any Third-Party Payment Processor within such three-year period, Plaza Bank
or any predecessor banks stopped providing bank accounts and banking services to any such Third-
Party Payment Processors in accordance with Section XIV.A.1 or Section XIV.A.2.a of the
Consent Decree.
(vi) The most recent regulatory rating given to Plaza Bank as to
compliance with the Community Reinvestment Act is “satisfactory.” To the Knowledge of Plaza,
since the last regulatory examination of Plaza Bank with respect to Community Reinvestment Act
compliance, Plaza Bank has not received any complaints as to Community Reinvestment Act
compliance.
(j) Compliance With Laws. Each of Plaza and its Subsidiaries:
(i) is, and at all times since January 1, 2014, has been, in material
compliance with all applicable federal, state, local and foreign statutes, laws, codes, regulations,
ordinances, rules, judgments, injunctions, orders, decrees or policies and/or guidelines of any
Governmental Authority applicable thereto or to the employees conducting such business,
including, without limitation, Sections 23A and 23B of the Federal Reserve Act and FRB and
FDIC regulations pursuant thereto, the Equal Credit Opportunity Act, the Fair Housing Act, the
Community Reinvestment Act, the Home Mortgage Disclosure Act, the Bank Secrecy Act, the
USA PATRIOT Act, the Electronic Fund Transfer Act and Regulation E of the FRB, all other
applicable fair lending laws and other laws relating to discriminatory business practices and all
posted and internal policies of Plaza and its Subsidiaries related to customer data, privacy and
security;
(ii) has, and at all times since January 1, 2014, has had, all permits,
licenses, franchises, authorizations, orders and approvals of, and has made all filings, applications
and registrations with, all Governmental Authorities (and has paid all fees and assessments due
and payable in connection therewith) that are required in order to permit them to own or lease their
properties and to conduct their business as presently conducted; all such permits, licenses,
#52027286_v14 28
franchises, certificates of authority, orders and approvals are in full force and effect and, to Plaza’s
Knowledge, no suspension or cancellation of any of them is threatened; and
(iii) has received no notification or communication from any
Governmental Authority (A) asserting that Plaza or any of its Subsidiaries is not in compliance
with any of the statutes, regulations or ordinances which such Governmental Authority enforces
or (B) threatening to revoke any license, franchise, permit or governmental authorization (nor, to
Plaza’s Knowledge, do any grounds for any of the foregoing exist.
(k) Material Contracts; Defaults.
(i) Except for documents set forth in Section 5.03(k)(i) of Plaza’s
Disclosure Schedule, neither Plaza nor any of its Subsidiaries is a party to, bound by or subject to
any agreement, contract, arrangement, commitment or understanding (whether written or oral) (A)
with respect to the employment of any of its directors, officers, employees, or with regards to the
provision of services similar to those provided by an employee, independent contractors or
consultants and involving the payment or value of more than $50,000 per annum, (B) which would
entitle any present or former director, officer, employee, independent contractor, consultant or
agent of Plaza or any of its Subsidiaries to indemnification from Plaza or any of its Subsidiaries,
(C) which provides for the payment by Plaza or any of its Subsidiaries of profit-sharing, severance
or other compensation upon a merger, consolidation, acquisition, asset purchase, stock purchase
or other business combination transaction involving Plaza or any of its Subsidiaries, including but
not limited to, the Transaction or which includes a non-compete provision, (D) which would be a
material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC), (E) which is an
agreement (including data processing, software programming, consulting and licensing contracts)
not terminable on 60 days or less notice and involving the payment or value of more than $50,000
per annum, (F) which is with or to a labor union, employee representative or guild (including any
collective bargaining agreement), (G) which relates to the incurrence of indebtedness or guaranty
of any liability (other than deposit liabilities, advances and loans from the FHLB, and sales of
securities subject to repurchase, in each case, in the ordinary course of business), (H) which grants
any Person a right of first refusal, right of first offer or similar right with respect to any material
properties, rights, assets or businesses of Plaza or any of its Subsidiaries, (I) which involves the
purchase or sale of assets with a purchase price of $100,000 or more in any single case or $300,000
in all such cases, other than purchases and sales of investment securities or government guaranteed
loans in the ordinary course of business consistent with past practice, (J) which is a consulting
agreement, license or service contract (including data processing, software programming and
licensing contracts and outsourcing contracts) which involves the payment of $50,000 or more in
annual fees, (K) which relates to the settlement or other resolution of any legal proceeding in an
amount in excess of $50,000 and that has any continuing obligations, liabilities or restrictions,
(L) which relates to a partnership or joint venture or similar arrangement, (M) which is a lease for
any real or material personal property owned or presently used by Plaza or any of its Subsidiaries,
(N) which materially restricts the conduct of any business by Plaza or any of its Subsidiaries or
limits the freedom of Plaza or any of its Subsidiaries to engage in any line of business in any
geographic area (or would so restrict the Surviving Corporation or any of its Affiliates after
consummation of the Transaction) or which requires exclusive referrals of business or requires
Plaza or any of its Subsidiaries to offer specified products or services to its customers or depositors
on a priority or exclusive basis, or (O) which is with respect to, or otherwise commits Plaza or any
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of its Subsidiaries to do, any of the foregoing (collectively, “Material Contracts”). Except as set
forth in Section 5.03(k)(i) of Plaza’s Disclosure Schedule, no consents, approvals, notices or
waivers are required to be obtained or delivered pursuant to the terms and conditions of any
Material Contract as a result of Plaza’s and Plaza Bank’s (as applicable) execution, delivery or
performance of this Agreement and the Bank Merger Agreement and the consummation of the
Transaction. True, correct and complete copies of all such Material Contracts have been made
available to PPBI as of the date hereof.
(ii) Each of the Material Contracts is in full force and effect (other than
due to the ordinary expiration thereof) and is a valid and binding obligation of Plaza or its
Subsidiaries and, to Plaza’s Knowledge, is a valid and binding obligation of the other parties
thereto, enforceable against Plaza or its Subsidiaries, and to Plaza’s Knowledge, the other parties
thereto, in accordance with its terms (in each case, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar
laws of general applicability relating to or affecting creditors’ rights or by general equity
principles). Plaza and its Subsidiaries (as applicable) have performed, in all material respects, all
obligations required to be performed by them under each Material Contract. Neither Plaza or its
Subsidiaries nor, to Plaza’s Knowledge, any other parties thereto, is in material default under any
contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to
which they are a party, by which their respective assets, business, or operations may be bound or
affected, or under which their respective assets, business, or operations receives benefits, and there
has not occurred any event that, with the lapse of time or the giving of notice or both, would
constitute such a default. No power of attorney or similar authorization given directly or indirectly
by Plaza or any of its Subsidiaries is currently outstanding. With respect to the Material Contracts,
to Plaza’s Knowledge, no event has occurred, and no circumstance or condition exists that (with
or without notice or lapse of time, or both) will, or would reasonably be expected to, (A) give any
Person the right to declare a default or exercise any remedy under any Material Contract, (B) give
any Person the right to accelerate the maturity or performance of any Material Contract, or (C) give
any Person the right to cancel, terminate or modify any Material Contract.
(iii) Section 5.03(k)(iii) of Plaza’s Disclosure Schedule sets forth a
schedule of all holders of five percent or more of Plaza Common Stock and executive officers and
directors of Plaza and its Subsidiaries who have outstanding loans from Plaza or any of its
Subsidiaries, and there has been no default on, or forgiveness or waiver of, in whole or in part, any
such loan during the two years immediately preceding the date hereof.
(l) No Brokers. No action has been taken by Plaza or any of its Subsidiaries
that would give rise to any valid claim against any party hereto for a brokerage commission,
finder’s fee or other like payment with respect to the Transaction, other than fees to be paid to
Sandler ▇’▇▇▇▇▇ & Partners, L.P., which are set forth in Section 5.03(l) of Plaza’s Disclosure
Schedule. Copies of all agreements with Sandler ▇’▇▇▇▇▇ & Partners, L.P. have been previously
provided or made available to PPBI.
(m) Employee Benefit Plans.
(i) All benefit and compensation plans, contracts, policies or
arrangements maintained, contributed to, obligated to be contributed to, or sponsored by Plaza and
#52027286_v14 30
its Subsidiaries for the benefit of current or former employees of Plaza and its Subsidiaries (the
“Employees”) and current or former directors or independent contractors of Plaza or its
Subsidiaries including, but not limited to, “employee benefit plans” within the meaning of Section
3(3) of ERISA, any pension, retirement, profit sharing, medical, life, accidental death and
dismemberment, disability, dental, vision, compensation, severance, termination pay, salary
continuation, unemployment, workers’ compensation, vacation, sick pay, paid-time off, retention,
employment, consulting, change in control, fringe benefit, deferred compensation, stock option,
stock purchase, stock appreciation rights or other stock-based incentive, cafeteria or flexible
benefit, adoption or educational assistance, and bonus or other cash-based incentive, or other
similar plans, agreements, programs, policies or other arrangements (whether written or oral and
whether or not qualified or funded) or any such plan for which Plaza may have any liability
including, without limitation, as a result of being deemed a single employer with any entity under
Section 4001(b)(1) of ERISA or Section 414 of the Code (collectively, the “Benefit Plans”), are
set forth in Section 5.03(m)(i) of Plaza’s Disclosure Schedule. True and complete copies of the
following documents have been provided or made available to PPBI: (A) all Benefit Plans and all
written agreements underlying a funding medium for, or relating to the administration of, any
Benefit Plan including, but not limited to, any trust instruments, group annuity contracts,
investment management, recordkeeping, administrative services, other third party services
agreements and insurance contracts, certificate of coverage and other similar agreements entered
into in connection with any Benefit Plans and all amendments thereto; (B) the three most recent
annual report (Form 5500), together with all schedules, as required, filed with the Internal Revenue
Service (“IRS”) or Department of Labor (the “DOL”), as applicable, and any financial statements
and opinions required by Section 103(e)(3) of ERISA with respect to each Benefit Plan; (C) for
each Benefit Plan which is a “top-hat” plan, a copy of filings with the DOL; (D) the most recent
determination or opinion or advisory letter issued by the IRS for each Benefit Plan that is intended
to be “qualified” under Section 401(a) of the Code; (E) the most recent summary plan description
and any summary of material modifications, as required, for each Benefit Plan; (F) the three most
recent actuarial reports, if any, relating to each Benefit Plan; (G) the most recent summary annual
report for each Benefit Plan required to provide summary annual reports by Section 104 of ERISA;
(H) the most recent minimum coverage and discrimination testing results for each applicable
Benefit Plan; and (I) copies of all non-routine correspondence received from or delivered to the
IRS or the DOL since January 1, 2013.
(ii) Each Benefit Plan has been established and administered to date in
all material respects in accordance with the applicable provisions of ERISA, the Code and
applicable law, including the Patient Protection and Affordable Care Act, as amended by the
Health Care and Reconciliation Act of 2010, and the requirements of Section 4980B of the Code
and Part 6 of Subtitle B of Title I of ERISA, and with the terms and provisions of all documents,
contracts or agreements pursuant to which such Benefit Plan is maintained. Each Benefit Plan
which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a
“Pension Plan”) and which is intended to be qualified under Section 401(a) of the Code, has
received a favorable determination letter, or advisory or opinion letter, as applicable, from the IRS,
and Plaza has no Knowledge of any circumstances reasonably likely to result in revocation of any
such favorable determination letter or the loss of the qualification of such Pension Plan under
Section 401(a) of the Code. Neither Plaza nor any of its Subsidiaries has received any
correspondence or written or verbal notice from the IRS, DOL, any other Governmental Authority,
any participant in or beneficiary of, a Benefit Plan, or any agent representing any of the foregoing
#52027286_v14 31
that brings into question the qualification of any such Benefit Plan. There is no pending or, to
Plaza’s Knowledge, threatened proceeding, lawsuit or claim (other than a routine claim for
benefits) relating to the Benefit Plans. Neither Plaza nor any of its Subsidiaries is subject to or
could reasonably be likely to be subject to a material Tax, fine, penalty or material liability of any
kind under either the Code or ERISA. No assets of Plaza or any Subsidiary are subject to an
encumbrance or lien that may be imposed under ERISA or the Code with respect to the operation,
administration or funding of any Benefit Plan. Since January 1, 2013, no Benefit Plan or related
trust has been the subject of an audit, investigation or examination or other proceeding by the IRS,
the DOL or other Governmental Authority. There have been no non-exempt “prohibited
transactions” within the meaning of Section 4975 of the Code or Section 406 of ERISA and no
breach of fiduciary duty has occurred with respect to any Benefit Plan. With respect to each
Benefit Plan, as applicable, all reports and disclosures required to be filed or delivered under
ERISA and the Code have been accurate, have been filed or distributed in a timely manner, and
any Taxes due in connection with such filings have been paid.
(iii) Neither Plaza nor any entity considered to be a single employer with
Plaza under Section 3(37) or 4001(b)(1) of ERISA or Section 414 of the Code (“ERISA Affiliate”)
maintains or contributes to any Pension Plan subject to Title IV of ERISA, a multiple employer
plan (as defined in Section 413(c) of the Code) or multiemployer plan (as defined in 4001(a)(3) of
ERISA), a “voluntary employee’s beneficiary association” within the meaning of Section
501(c)(9) of the Code, a “multiple employer welfare arrangement” within the meaning of Section
3(40) of ERISA” or a Retiree Welfare Plan, other than those disclosed and identified as such in
Section 5.03(m)(iii) of Plaza’s Disclosure Schedule. Except as set forth in Section 5.03(m)(iii) of
Plaza’s Disclosure Schedule, no Benefit Plan holds as an asset an annuity contract, guaranteed
investment contract or other investment contract issued by an insurance company.
(iv) All contributions required to be made under the terms of any Benefit
Plan (including any amounts withheld from employees’ paychecks with respect to a Benefit Plan)
and premiums required to be paid have been timely made or paid when due in accordance with the
terms of the applicable Benefit Plan and applicable law. All contributions for any period ending
on or before the Closing Date that are not yet due have been made or have been reflected
appropriately in the Plaza Financial Statements. Benefits under each Benefit Plan that is an
“employee welfare benefit plan” (within the meaning of Section 3(1) of ERISA), with the
exception of any flexible spending arrangements subject to Sections 125 and 105 of the Code and
health savings accounts, are provided exclusively through insurance contracts or policies issued
by an insurance company, health maintenance organization, or similar organization unrelated to
Plaza or any of its Subsidiaries, the premiums for which are paid directly by Plaza or any of its
Subsidiaries, from its general assets or partly from its general assets and partly from contributions
by its employees. No insurance policy or contract relating to a Benefit Plan requires or permits a
retroactive increase to premiums or payments due thereunder.
(v) Except as set forth in Section 5.03(m)(v) of Plaza’s Disclosure
Schedule, none of the execution of this Agreement, Plaza shareholder approval of this Agreement
or consummation of the Transaction, either alone or in connection with any other event, (A) entitle
any Employees or any current or former director or independent contractor of Plaza or any of its
Subsidiaries to severance pay or any increase in severance pay upon any termination of
employment or service after the date hereof, (B) accelerate the time of payment or vesting or
#52027286_v14 32
trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits
under, increase the amount payable under, or trigger any other material obligation pursuant to, any
of the Benefit Plans, (C) result in any breach or violation of, or a default under, any of the Benefit
Plans or (D) result in the payment of any “excess parachute payments” within the meaning of
Section 280G of the Code. Plaza will make available to PPBI upon request Plaza’s calculations
under Section 280G of the Code and all related underlying back-up information and agreements
taken into account in the performance of such calculations or deemed necessary by PPBI, in its
discretion, including, without limitation, pertinent Form W-2 information for any “disqualified
individuals” determined in accordance with Q&A-15 of Treasury Regulation § 280G-1. Neither
Plaza nor any of its Subsidiaries has any liability or is a party with respect to any gross-up provision
or agreement in connection with Section 280G of the Code or excise Taxes under Section 4999 of
the Code.
(vi) Neither Plaza nor any of its Subsidiaries has now, nor has had, the
obligation to maintain, establish, sponsor, participate in or contribute to any Benefit Plan or other
similar arrangement that is subject to any law or applicable custom or rule of any jurisdiction
outside of the United States.
(vii) Each Benefit Plan which is a “nonqualified deferred compensation
plan” (within the meaning of Section 409A of the Code) (hereinafter referred to as a “Plaza
NQDP”) has been maintained, as to both form and operation, in compliance with Section 409A of
the Code. No event in connection with a Plaza NQDP has occurred which would subject a
participant to inclusion of income under Section 409A(a)(1) of the Code and neither Plaza nor any
ERISA Affiliate has any liability or is a party with respect to any gross-up provision or agreement
in connection with any income inclusion, interest or additional Tax payable in accordance with
Section 409A(a)(1) of the Code.
(viii) Except as set forth in Section 5.03(m)(viii) of Plaza’s Disclosure
Schedule and Section 6.11(d), each Benefit Plan may be amended or terminated without the
consent of the participants and without the imposition of any additional liability or penalties upon
Plaza or its ERISA Affiliates, and neither Plaza nor any Subsidiary has (A) announced its intention,
made any amendment or any binding commitment, or given written or oral notice providing that
it will increase benefits under any Benefit Plan, (B) created or adopted any arrangement that would
be considered a Benefit Plan once established, or (C) agreed not to exercise any right or power to
amend, suspend or terminate any Benefit Plan.
(n) Labor Matters.
(i) Section 5.03(n)(i) of Plaza’s Disclosure Schedule sets forth (A) the
name, title and total compensation of each officer of Plaza and each of its Subsidiaries and each
other employee of Plaza and each of its Subsidiaries, (B) all bonuses and other incentive
compensation received by such officers, employees, independent contractors and consultants in
2016 and 2017 and any accrual for such bonuses and incentive compensation and (C) all contracts,
agreements, commitments or arrangements by Plaza and each of its Subsidiaries regarding
compensation with any of its respective officers, employees, independent contractors and
consultants, including those to increase the compensation or to modify the conditions or terms of
employment.
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(ii) To Plaza’s Knowledge, no officer or director of Plaza or any of its
Subsidiaries or any employee, independent contractor or consultant of Plaza or any of its
Subsidiaries is a party to, or is otherwise bound by, any agreement or arrangement, including any
confidentiality, non-competition, or proprietary rights agreement, that could adversely affect the
ability of Plaza or any of its Subsidiaries to conduct its business as currently conducted.
(iii) Neither Plaza nor any of its Subsidiaries has classified any
individual as an “independent contractor” or similar status who, under applicable law, rule or
regulation or the provisions of any Benefit Plan, should have been classified as an employee.
Neither Plaza nor any of its Subsidiaries has incurred any liability for improperly excluding any
Person from participating in any Benefit Plan who provides or provided services to Plaza or any
of its Subsidiaries, in any capacity.
(iv) None of the officers, employees or consultants of Plaza or any of its
Subsidiaries has informed Plaza or such Subsidiary of his or her intent, nor does Plaza have any
Knowledge of any of the officers, employees or consultants of Plaza or any of its Subsidiaries
having an intention, to terminate employment with Plaza or any of its Subsidiaries during the next
twelve (12) months.
(v) Neither Plaza nor any of its Subsidiaries is a party to or is bound by
any collective bargaining agreement, contract or other agreement, arrangement or understanding
with a labor union or labor organization, nor is Plaza or any of its Subsidiaries the subject of a
proceeding asserting that it has committed an unfair labor practice (within the meaning of the
National Labor Relations Act) or seeking to compel Plaza or any of its Subsidiaries to bargain with
any labor organization as to wages or conditions of employment, nor is there any strike or other
labor dispute involving it pending or, to Plaza’s Knowledge, threatened, nor does Plaza have any
Knowledge of any activity involving its employees seeking to certify a collective bargaining unit
or engaging in other organizational activity. Each of Plaza and its Subsidiaries has paid in full all
wages, salaries, commissions, bonuses, benefits and other compensation currently due to its
employees or otherwise arising on a current basis under any policy, practice, agreement, plan,
program, statute or other law. Except as set forth in Section 5.03(n)(v) of Plaza’s Disclosure
Schedule, the employment of each officer and employee of Plaza and each of its Subsidiaries is
terminable at the will of Plaza or such Subsidiary.
(vi) Except as set forth in Section 5.03(n)(vi) of Plaza’s Disclosure
Schedule, there is no pending or, to Plaza’s Knowledge, threatened legal proceeding involving
Plaza or any of its Subsidiaries, on the one hand, and any present or former employee(s) of Plaza
or any of its Subsidiaries, on the other hand, and (B) no other Person, to Plaza’s Knowledge, has
threatened any claim or any legal proceeding against Plaza or any of its Subsidiaries (or, to Plaza’s
Knowledge, against any officer, director or employee of Plaza or any of its Subsidiaries) relating
to employees or former employees of Plaza or any of its Subsidiaries, including any such claim or
legal proceeding arising out of any statute, ordinance or regulation relating to wages, collective
bargaining, discrimination in employment or employment practices or occupational safety and
health standards (including, without limitation, the Fair Labor Standards Act, Title VII of the Civil
Rights Act of 1964, as amended, the Occupational Safety and Health Act, the Age Discrimination
in Employment Act of 1967, the Americans with Disabilities Act or the Family and Medical Leave
Act).
#52027286_v14 34
(vii) Plaza and each of its Subsidiaries is, and at all times since January
1, 2014 has been, in material compliance with all applicable federal, state, local and foreign
statutes, laws, codes, regulations, ordinances, rules, judgments, injunctions, orders, decrees or
policies and/or guidelines of a Governmental Authority relating to labor, employment, termination
of employment or similar matters, including, but not limited to, such laws, codes, regulations,
ordinances, rules, judgments, injunctions, orders, decrees or policies and/or guidelines relating to
discrimination, disability, labor relations, hours of work, payment of wages and overtime wages,
pay equity, immigration, workers compensation, working conditions, employee scheduling,
occupational safety and health, family and medical leave and employee terminations, and has not
engaged in any unfair labor practices or similar prohibited practices.
(o) Environmental Matters. (i) there are no legal, administrative, arbitral or
other proceedings, claims, actions, or, to Plaza’s Knowledge, environmental investigations or
remediation activities by a Governmental Authority or third party, seeking to impose, or that
reasonably could be expected to result in the imposition, on Plaza or any of its Subsidiaries any
liability or obligation arising under any Environmental Laws pending or, to Plaza’s Knowledge,
threatened against Plaza or any of its Subsidiaries, which liability or obligation could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect on Plaza, and there
is no reasonable basis for any such proceeding, claim, action, environmental remediation or
investigation that could impose any liability or obligation that could have or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on Plaza; (ii) Plaza
and each of its Subsidiaries is in compliance in all material respects with applicable Environmental
Laws; (iii) no real property (including buildings or other structures) currently or, to Plaza’s
Knowledge, formerly owned or operated by Plaza or any of its Subsidiaries, or any property in
which Plaza or any of its Subsidiaries holds a security interest or a fiduciary or management role
(“Plaza Loan Property”), has been contaminated with, or has had any release of, any Hazardous
Substance in violation of Environmental Law or that requires investigation or remediation under
an Environmental Law, that has resulted, or would reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect on Plaza; (iv) in accordance with the Secured
Creditor Exemption, neither Plaza nor any of its Subsidiaries are the “owner or operator” of, nor
have “participated in the management” regarding Hazardous Substances at, any Plaza Loan
Property which has been contaminated with, or has had any release of, any Hazardous Substance
in violation of any Environmental Law or that requires investigation or remediation under any
Environmental Law, that has resulted, or would reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect on Plaza; (v) neither Plaza nor any of its Subsidiaries
nor, to Plaza’s Knowledge, any Person whose liability Plaza or any of its Subsidiaries has assumed
whether contractually or by operation of law, has received any notice, demand letter, claim or
request for information alleging any material violation of, or material liability under, any
Environmental Law, and neither Plaza nor any of its Subsidiaries is subject to any order, decree,
injunction or other agreement with any Governmental Authority relating to any Environmental
Law, or agreement with any third party resolving claims under any Environmental Law, which has
not been fully satisfied or discharged; (vi) there are no circumstances or conditions (including the
presence of asbestos, underground storage tanks, lead products, polychlorinated biphenyls, prior
manufacturing operations, dry-cleaning, or automotive services) involving any currently or, to
Plaza’s Knowledge, formerly owned or operated property, any Plaza Loan Property, or to Plaza’s
Knowledge any Person whose liability Plaza or any of its Subsidiaries has assumed, whether
contractually or by operation of law, that could reasonably be expected to result in any claims,
#52027286_v14 35
liability or investigations against Plaza, result in any restrictions on the ownership, use, or transfer
of any property pursuant to any Environmental Law, or adversely affect the value of any Plaza
Loan Property, which could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Plaza; (vii) Plaza has provided and made available to PPBI copies of
all material environmental reports or studies, sampling data, correspondence, filings and other
material environmental information in its possession or reasonably available to it relating to Plaza,
its Subsidiaries and any currently or formerly owned or operated property.
As used herein, the term “Environmental Laws” means any federal, state, local or foreign
law, statute, code, ordinance, injunction, regulation, order, decree, permit, or Governmental
Authority requirement relating to: (A) the protection or restoration of the environment, health,
safety, or natural resources, (B) the handling, use, presence, disposal, release or threatened release
of any Hazardous Substance or (C) noise, odor, wetlands, indoor air, pollution, contamination or
any injury or threat of injury to persons or property in connection with any Hazardous Substance,
including without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. § 9601, et seq. and related or similar state and local laws and
regulations. The term “Hazardous Substance” means any substance that is: (X) listed, classified or
regulated pursuant to any Environmental Law, (Y) any petroleum, petroleum product or by-
product, asbestos-containing material, lead-containing paint or plumbing, polychlorinated
biphenyls, radioactive materials, radon or urea-formaldehyde insulation or (Z) any other substance
which is the subject of regulatory action by any Governmental Authority in connection with any
Environmental Law. The term “Secured Creditor Exemption” has the meaning provided to such
term in 42 U.S.C. § 9601(20)(A), 42 U.S.C. § 6991b(h)(9), and Cal. Health & Safety Code §
25548, et seq.
(p) Tax Matters.
(i) (A) All Tax Returns that are required to be filed on or before the
Closing Date (taking into account any extensions of time within which to file that have not expired)
by or with respect to the Plaza Group have been or will be timely filed on or before the Closing
Date, (B) all such Tax Returns are or will be true, correct and complete in all material respects,
(C) all Taxes due and payable by or with respect to the Plaza Group (whether or not shown as due
on any Tax Return) have been timely paid in full, (D) the unpaid Taxes of the Plaza Group did not,
as of the date of the most recent financial statements included in the Plaza Financial Statements,
exceed the reserve for Tax liability set forth on the face of such financial statements and do not
exceed that reserve as adjusted for the passage of time through the Closing Date in accordance
with the past custom and practice of the Plaza Group in filing its Tax Returns, (E) all deficiencies
asserted or assessments made as a result of examinations conducted by any taxing authority have
been paid in full, other than those being contested through appropriate proceedings and set forth
in Section 5.03(p)(i) of Plaza’s Disclosure Schedule, (F) no issues that have been raised by the
relevant taxing authority in connection with the examination of any of the Tax Returns referred to
in clause (A) are currently pending and (G) no statutes of limitation with respect to any Taxes of
the Plaza Group have been waived or extended by or on behalf of the Plaza Group.
(ii) Plaza has made available to PPBI (A) true and correct copies of the
U.S. federal, state, local and foreign income Tax Returns filed by or on behalf of the Plaza Group
for each of the three most recent fiscal years for which such returns have been filed and (B) any
#52027286_v14 36
audit report issued by a Tax authority within the last three years relating to Taxes due from or with
respect to the Plaza Group or its income, assets or operations. Section 5.03(p)(ii) of Plaza’s
Disclosure Schedule sets forth any income or franchise Tax Returns filed by or on behalf of the
Plaza Group that have been examined by any taxing authority since January 1, 2013.
(iii) To the Knowledge of Plaza, except as set forth in Section 5.03(p)(iii)
of Plaza’s Disclosure Schedule, there are no audits or investigations by any taxing authority or
proceedings in progress with respect to the Plaza Group, nor has the Plaza Group received any
notice from any taxing authority that it intends to conduct such an audit or investigation.
(iv) No claim has been made in writing during the past five (5) years by
a taxing authority in a jurisdiction where the Plaza Group does not already file Tax Returns that
the Plaza Group is or may be subject to taxation by that jurisdiction.
(v) The Plaza Group has withheld and paid over all Taxes required to
have been withheld and paid over, and complied with all information reporting and backup
withholding requirements, including maintenance of required records thereto, in connection with
amounts paid or owing to any employee, creditor, independent contractor, or other third party and
has complied in all material respects with all applicable laws, rules and regulations relating to the
withholding and payment of Taxes.
(vi) The Plaza Group does not have a permanent establishment in any
country other than the United States under any applicable Tax treaty between the United States
and such other country and is not subject to income Tax in any country other than the United
States.
(vii) There are no Liens or other encumbrances on any of the assets of the
Plaza Group that arose in connection with any failure (or alleged failure) to pay any Tax other than
Permitted Liens.
(viii) No closing agreements, extensions of time within which to file any
Tax Return, private letter rulings (or comparable rulings), technical advice memoranda or similar
agreements or rulings have been entered into, requested of or issued by any taxing authority with
respect to the Plaza Group.
(ix) No member of the Plaza Group has been, in the past five (5) years,
a party to a transaction reported or intended to qualify as a reorganization under Section 368 of the
Code. No member of the Plaza Group has been a “distributing corporation” or a “controlled
corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares
that was reported or otherwise constituted a distribution of shares under Section 355 of the Code
in the two (2) years prior to the date of this Agreement or that could otherwise constitute part of a
“plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) that
includes the Transaction contemplated by this Agreement.
(x) No member of the Plaza Group is or has been, a United States real
property holding corporation within the meaning of Section 897(c) of the Code during the
applicable period specified in Section 897(c)(1)(A)(ii) of the Code; and no stock transfer Taxes,
#52027286_v14 37
sales Taxes, use Taxes or real estate transfer or gains Taxes will be imposed on the Transaction
contemplated by this Agreement.
(xi) The Plaza Group will not be required to include any material item
of income in, or exclude any material item of deduction from its taxable income for any taxable
period (or portion thereof) ending after the Closing Date as a result of any of the following that
occurred or exists on or prior to the Closing Date: (A) a “closing agreement” as described in
Section 7121 of the Code (or any corresponding or similar provision of the Code or of the Tax
laws of any state or locality), (B) an installment sale or open transaction, (C) a prepaid amount, or
(D) change in the accounting method of Plaza pursuant to Section 481 of the Code (or any
corresponding or similar provision of the Code or of the Tax laws of any state or locality).
(xii) Except as set forth in Section 5.03(p)(xii) of Plaza’s Disclosure
Schedule, neither Plaza nor any of its Subsidiaries is a party to any Tax sharing, Tax allocation or
similar agreement or arrangement (whether or not written) with any Person.
(xiii) The Plaza Group has not (A) consummated or participated in, and is
not currently participating in, any transaction which was or is a “Tax shelter” transaction as defined
in Section 6662, 6011, 6111 or 6112 of the Code, applicable regulations thereunder or other related
published guidance from the IRS or (B) engaged in any transaction that could give rise to (1) a
registration obligation with respect to any Person under Section 6111 of the Code or the regulations
thereunder, (2) a list maintenance obligation with respect to any person under Section 6112 of the
Code or the regulations thereunder, or (3) a disclosure obligation as a “reportable transaction”
under Section 6011 of the Code or the regulations thereunder.
(xiv) No power of attorney granted by any member of the Plaza Group
relating to Taxes is currently in force.
(xv) No member of the Plaza Group has been a member of a
consolidated, combined, unitary or affiliated group (other than a group of which Plaza is the parent)
or has any liability for Taxes of any Person (other than another member of the Plaza Group) under
Section 1.1502-6 of the regulations of the U.S. Treasury (“Treasury Regulations”) or any similar
provision of state, local, or foreign law, or as a transferee or successor, by contract, or otherwise.
(xvi) The Plaza Group has not filed a consent under Section 341(f) of the
Code.
(xvii) No property owned by the Plaza Group (A) is property required to
be treated as being owned by another Person pursuant to the provisions of Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of
the Tax Reform Act of 1986, (B) constitutes “tax-exempt use property” within the meaning of
Section 168(h)(1) of the Code or (C) is “tax-exempt bond financed property” within the meaning
of Section 168(g)(5) of the Code.
(xviii) The Plaza Group does not owe any “corporate acquisition
indebtedness” within the meaning of Section 279 of the Code.
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(xix) Any adjustment of Taxes of the Plaza Group made by a
Governmental Authority, which is required to be reported to another Governmental Authority, has
been so reported.
(xx) The Plaza Group is not required to include in income any amount
for an adjustment pursuant to an election by the Plaza Group under Section 108(i) of the Code or
the Treasury Regulations thereunder.
(q) Risk Management Instruments.
(i) Except as set forth in Section 5.03(q)(i) of Plaza’s Disclosure
Schedule, neither Plaza nor any of its Subsidiaries is a party to, or has agreed to enter into a
Derivatives Contract, whether for the account of Plaza or any of its Subsidiaries.
(ii) “Derivatives Contract” means any swap transaction, option,
warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction
or collar transaction relating to one or more currencies, commodities, bonds, equity securities,
loans, interest rates, credit-related events or conditions or any indexes, or any other similar
transaction or combination of any of these transactions, including collateralized mortgage
obligations or other similar instruments or any debt or equity instruments evidencing or embedding
any such types of transactions, and any related credit support, collateral or other similar
arrangements related to such transactions; provided that, for the avoidance of doubt, the term
“Derivatives Contract” shall not include any Plaza Options or Plaza Warrants.
(r) Loans; Nonperforming and Classified Assets.
(i) Each Loan on the books and records of Plaza and its Subsidiaries
was made and has been serviced in all material respects in accordance with Plaza Bank’s lending
standards in the ordinary course of business, is evidenced in all material respects by appropriate
and sufficient documentation and, to Plaza’s Knowledge, constitutes the legal, valid and binding
obligation of the obligor named therein, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting
creditor’s rights or by general equity principles. The Loan data tapes previously provided by Plaza
to PPBI accurately reflects in all material respects the Loan portfolio of Plaza and its Subsidiaries
as of the date of such loan tape.
(ii) Plaza has set forth in Section 5.03(r)(ii) of Plaza’s Disclosure
Schedule as of the date hereof: (A) any Loan under the terms of which the obligor is 60 or more
days delinquent in payment of principal or interest, or to Plaza’s Knowledge, in default of any
other material provision thereof; (B) each Loan which has been classified as “substandard,”
“doubtful,” “loss” or “special mention” (or words of similar import) by Plaza, any of its
Subsidiaries or an applicable regulatory authority (it being understood that no representation is
being made that the DBO or the FDIC would agree with the loan classifications established by
Plaza); (C) a listing of the OREO acquired by foreclosure or by deed-in-lieu thereof, including the
book value thereof as of June 30, 2017; and (D) each Loan with any director, executive officer or
five percent or greater shareholder of Plaza or any of its Subsidiaries, or to Plaza’s Knowledge,
any Person controlling, controlled by or under common control with, any of the foregoing.
#52027286_v14 39
(s) Properties. To Plaza’s Knowledge, all real and personal property owned by
Plaza or any of its Subsidiaries or presently used by any of them in their respective business is in
a good condition (ordinary wear and tear excepted) and is sufficient to carry on their respective
business in the ordinary course of business consistent with their past practices. Plaza has good,
marketable and indefeasible title, free and clear of all Liens, to all of the material properties and
assets, real and personal, reflected on the consolidated balance sheet of Plaza as of June 30, 2017
included in the Plaza Financial Statements, or acquired after such date, other than properties sold
by Plaza or any of its Subsidiaries in the ordinary course of business, except (i) Liens for current
taxes and assessments not yet due or payable for which adequate reserves have been established,
(ii) pledges to secure deposits incurred in the ordinary course of its banking business consistent
with past practice, (iii) such imperfections of title, easements and encumbrances, if any, as are not
material in character, amount or extent, (iv) as reflected on the consolidated balance sheet of Plaza
as of June 30, 2017 included in the Plaza Financial Statements and/or (v) as shown on the title
policies listed in Section 5.03(s) of Plaza’s Disclosure Schedule. All real and personal property
which is material to Plaza’s business on a consolidated basis and leased or licensed by Plaza or
any of its Subsidiaries is held pursuant to leases or licenses which are valid obligations of Plaza or
any of its Subsidiaries and, to Plaza’s Knowledge, are valid and binding obligations of the other
parties thereto, enforceable against Plaza or such Subsidiary of Plaza, and to Plaza’s Knowledge,
the other parties thereto, in accordance with their terms (in each case, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
and similar laws of general applicability relating to or affecting creditor’s rights or by general
equity principles). Except as set forth in Section 5.03(s) of Plaza’s Disclosure Schedule, such
leases will not terminate or lapse prior to the Effective Time and Plaza and each of its Subsidiaries
has the right to use and occupy such leased real property for the full term, and in accordance with
the conditions of the lease relating thereto. Neither Plaza nor any of its Subsidiaries has received
any written notice of termination, cancellation, breach or default under any such real property lease
and, to the Knowledge of Plaza as of the date hereof, no event has occurred, and no circumstances
or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably
be expected to, (A) result in a violation or breach of any of the provisions of any real property
lease, (B) give any Person the right to declare a default or exercise any remedy under any real
property lease, (C) give any Person the right to accelerate the maturity or performance of any real
property lease, or (D) give any Person the right to cancel, terminate or modify any real property
lease. To Plaza’s Knowledge, Plaza and its Subsidiaries are in compliance with all applicable
health and safety related requirements for the real property owned by any of them, including those
requirements under the Americans with Disabilities Act of 1990, as amended.
(t) Intellectual Property; Information Technology; Security.
(i) Each of Plaza and its Subsidiaries owns or possesses valid and
binding licenses and other rights to use all Intellectual Property used by Plaza and its Subsidiaries
in the conduct of its business as currently conducted, and neither Plaza nor any of its Subsidiaries
has received any notice of conflict or allegation of invalidity with respect thereto that asserts the
right of others. Plaza has listed all registered Intellectual Property owned by Plaza and its
Subsidiaries, and all contracts to which Plaza and its Subsidiaries has licensed Intellectual Property
from third parties that is material to the operation of Plaza and its Subsidiaries, in Section 5.03(t)(i)
of Plaza’s Disclosure Schedule (other than commercially available “shrink wrap” or “click wrap”
licenses). Each of Plaza and its Subsidiaries owns or has a valid right to use or license such
#52027286_v14 40
Intellectual Property, free and clear of all Liens (except any restrictions set forth in any licensed
Intellectual Property), and has performed all the obligations required to be performed by it and is
not in default under any contract, agreement, arrangement or commitment relating to any of the
foregoing. To Plaza’s Knowledge, such Intellectual Property is valid and enforceable.
(ii) (A) Each of Plaza and its Subsidiaries owns or is validly licensed to
use (in each case, free and clear of any Liens, except), all Intellectual Property used in or necessary
for the conduct of its business as currently conducted; (B) to Plaza’s Knowledge, the use of any
Intellectual Property by Plaza or any of its Subsidiaries and the conduct of their respective
businesses as currently conducted does not infringe on or otherwise violate the legal rights of any
Person; (C) to Plaza’s Knowledge, no Person is challenging, infringing on or otherwise violating
any right of Plaza or any of its Subsidiaries with respect to any Intellectual Property owned by
and/or licensed to Plaza or any of its Subsidiaries; and (D) neither Plaza nor any of its Subsidiaries
has received any written notice or otherwise has Knowledge of any pending legal proceeding
against Plaza or any of its Subsidiaries with respect to any Intellectual Property used by Plaza or
any of its Subsidiaries, or any Intellectual Property owned by any Person, and as of the date hereof,
Plaza and its Subsidiaries are unaware of any facts or events that would give rise to any legal
proceeding against Plaza or any of its Subsidiaries that is likely to succeed.
(iii) To Plaza’s Knowledge, all information technology and computer
systems (including software, information technology and telecommunication hardware and other
equipment) relating to the transmission, storage, maintenance, organization, presentation,
generation, processing or analysis of data and information, whether or not in electronic format,
used in or necessary to the conduct of Plaza’s and its Subsidiaries respective businesses
(collectively, “Plaza IT Systems”) have been properly maintained by technically competent
personnel, in accordance with standards set by the manufacturers or otherwise in accordance with
standards in the industry, to ensure proper operation, monitoring and use. The Plaza IT Systems
are in good working condition to effectively perform all information technology operations
necessary to conduct business as currently conducted. Neither Plaza nor any of its Subsidiaries
has experienced within the past three (3) years any material disruption to, or material interruption
in, its conduct of its business attributable to a defect, bug, breakdown or other failure or deficiency
of the Plaza IT Systems. Plaza and its Subsidiaries have taken commercially reasonable measures
to provide for the back-up and recovery of the data and information necessary to the conduct of its
business (including such data and information that is stored on magnetic or optical media in the
ordinary course) without material disruption to, or material interruption in, the conduct of its
business. Neither Plaza nor any of its Subsidiaries is in breach of any Material Contract related to
any Plaza IT Systems.
(u) Fiduciary Accounts. Plaza and each of its Subsidiaries have properly
administered all accounts for which it acts as a fiduciary, including but not limited to accounts for
which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or
investment advisor, in accordance with the terms of the governing documents and applicable laws
and regulations. Neither Plaza nor any of its Subsidiaries, nor, to Plaza’s Knowledge, any of their
respective directors, officers or employees, has committed any breach of trust with respect to any
fiduciary account and the records for each such fiduciary account are true and correct and
accurately reflect the assets of such fiduciary account.
#▇▇▇▇▇▇▇▇_v14 41
(v) Books and Records. The books and records of Plaza and its Subsidiaries
have been fully, properly and accurately maintained in material compliance with applicable legal
and accounting requirements, and such books and records accurately reflect in all material respects
all dealings and transactions in respect of the business, assets, liabilities and affairs of Plaza and
its Subsidiaries.
(w) Insurance. Section 5.03(w) of Plaza’s Disclosure Schedule lists and
summarizes all of the insurance policies, binders, or bonds currently maintained by Plaza and its
Subsidiaries (“Insurance Policies”), which summary includes for each Insurance Policy, the name
of the insurance carrier, annual premiums, and the amount of coverage per event and, in the
aggregate, a named insured (including any additional insured that may be required), or otherwise
the beneficiary of the coverage. Plaza and each of its Subsidiaries is insured with reputable
insurers against such risks and in such amounts as are customary and prudent in accordance with
industry practices. All the Insurance Policies are in full force and effect; neither Plaza nor any of
its Subsidiaries is in default thereunder; no event has occurred which, with notice or lapse of time,
or both, would constitute a default or permit termination, modification or acceleration under such
policies; all premiums due and payable with respect to the Insurance Policies have been timely and
fully paid; and all claims thereunder have been filed in due and timely fashion. Except as set forth
in Section 5.03(w) of Plaza’s Disclosure Schedule, there is no claim for coverage by Plaza or any
of its Subsidiaries pending under any Insurance Policies as to which coverage has been questioned,
denied or disputed by the underwriters of such Insurance Policies or in respect of which such
underwriters have reserved their rights. Neither Plaza nor any of its Subsidiaries have received
written notice of any threatened termination of, material premium increase with respect to, or
material alteration of coverage under, any Insurance Policies.
(x) Allowance For Loan Losses. Plaza Bank’s allowance for loan losses is, and
shall be as of the Effective Date, in compliance with Plaza Bank’s existing methodology for
determining the adequacy of its allowance for loan losses as well as the standards established by
applicable Governmental Authorities and the Financial Accounting Standards Board and is and
shall be adequate under all such standards.
(y) Transactions With Affiliates. All “covered transactions” between Plaza
Bank and an “affiliate” within the meaning of Sections 23A and 23B of the Federal Reserve Act
have been in compliance with such provisions.
(z) Required Vote; Antitakeover Provisions.
(i) The affirmative vote (or action by written consent) of the holders of
a majority of the outstanding shares of Plaza Common Stock entitled to vote (or consent) is
necessary to approve this Agreement and the Transaction on behalf of Plaza (the “Shareholder
Approval”). No other vote (or consent) of the shareholders of Plaza is required by law, the Plaza
Articles, the Plaza Bylaws or otherwise to approve this Agreement, the Bank Merger Agreement
and the Transaction. The delivery of Plaza Shareholder Consents representing greater than a
majority of the outstanding Plaza Common Stock complies with the Plaza Articles, the Plaza
Bylaws and the DGCL, and will constitute the Shareholder Approval required thereby.
#52027286_v14 42
(ii) Based on the representation and warranty of PPBI contained in
Section 5.04(l), no “control share acquisition,” “business combination moratorium,” “fair price”
or other form of antitakeover statute or regulation under the CGCL or any applicable provisions
of the takeover laws of any other state (and any comparable provisions of the Plaza Articles and
Plaza Bylaws), apply or will apply to this Agreement, the Bank Merger Agreement or the
Transaction.
(aa) Fairness Opinion. The Plaza Board has received the opinion of Sandler
▇’▇▇▇▇▇ & Partners, L.P., to the effect that as of such date, subject to the assumptions,
qualifications, limitations and other matters stated therein, the Exchange Ratio is fair to the holders
of Plaza Common Stock from a financial point of view.
(bb) Transactions in Securities.
(i) Since January 1, 2014, all offers and sales of Plaza Common Stock
by Plaza were at all relevant times exempt from, or complied with, the registration requirements
of the Securities Act.
(ii) Neither Plaza, none of its Subsidiaries, nor, to Plaza’s Knowledge,
(A) any director or executive officer of Plaza or any of its Subsidiaries, (B) any Person related to
any such director or officer by blood, marriage or adoption and residing in the same household and
(C) any Person who has been knowingly provided material nonpublic information by any one or
more of these Persons, has purchased or sold, or caused to be purchased or sold, any shares of
Plaza Common Stock or other securities issued by Plaza (1) during any period when Plaza was in
possession of material nonpublic information, or (2) in violation of any applicable provision of
federal or state securities laws, rules or regulations.
(cc) Registration Obligation. Neither Plaza nor any of its Subsidiaries is under
any obligation, contingent or otherwise, to register any of their respective securities under the
Securities Act.
(dd) Disclosure. The representations and warranties contained in this Section
5.03, when considered as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and information contained in
this Section 5.03 not misleading.
(ee) No Additional Representations. Except for the representations and
warranties made by Plaza in this Section 5.03 and as Previously Disclosed, neither Plaza nor any
other Person makes any express or implied representation or warranty with respect to Plaza, its
Subsidiaries, or their respective businesses, operations, assets, liabilities, conditions (financial or
otherwise) or prospects, and Plaza hereby expressly disclaims any such other representations and
warranties.
5.04 Representations and Warranties of PPBI. Subject to Sections 5.01 and 5.02, PPBI
hereby represents and warrants to Plaza as follows:
(a) Organization, Standing and Authority. PPBI is duly organized, validly
existing and in good standing under the laws of the State of Delaware. PPBI is duly licensed or
#52027286_v14 43
qualified to do business and is in good standing in each jurisdiction where its ownership or leasing
of property or assets or the conduct of its business requires it to be so licensed or qualified, except
where the failure to be so licensed or qualified would not have nor reasonably be expected to have
a Material Adverse Effect on PPBI. PPBI has in effect all federal, state, local and foreign
governmental authorizations necessary for it to own or lease its properties and assets and to carry
on its business as it is now conducted.
(b) PPBI Capital Stock.
(i) As of the date hereof, the authorized capital stock of PPBI consists
solely of 100,000,000 shares of PPBI Common Stock, of which 40,055,988 shares were issued and
outstanding as of the close of business on August 7, 2017, and 1,000,000 shares of PPBI Preferred
Stock, of which no shares were issued and outstanding as of the date hereof. The outstanding
shares of PPBI Common Stock have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the shares of PPBI Common Stock have been issued in violation
of the preemptive rights of any Person. As of the date hereof, there are no Rights authorized, issued
or outstanding with respect to the capital stock of PPBI, except for shares of PPBI Common Stock
issuable pursuant to the PPBI Benefit Plans and by virtue of this Agreement.
(ii) The shares of PPBI Common Stock to be issued in exchange for
shares of Plaza Common Stock in the Merger, when issued in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid and nonassessable and the issuance
thereof is not subject to any preemptive right.
(c) Pacific Premier.
(i) Pacific Premier is duly organized, validly existing and in good
standing under the laws of the State of California and is duly qualified to do business and is in
good standing in the jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified. Pacific Premier is duly licensed by the DBO and its deposit
accounts are insured by the FDIC in the manner and to the maximum extent provided by applicable
law.
(ii) (A) PPBI owns, directly or indirectly, all the issued and outstanding
equity securities of Pacific Premier, (B) no equity securities of Pacific Premier are or may become
required to be issued (other than to PPBI) by reason of any Right or otherwise, (C) there are no
contracts, commitments, understandings or arrangements by which Pacific Premier is or may be
bound to sell or otherwise transfer any of its equity securities (other than to PPBI or any of its
wholly-owned Subsidiaries) and (D) there are no contracts, commitments, understandings, or
arrangements relating to PPBI’s right to vote or to dispose of such securities.
(d) Corporate Power. Each of PPBI and Pacific Premier has the corporate
power and authority to carry on its business as it is now being conducted and to own all its
properties and assets. PPBI has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and to consummate the Transaction and to cause Pacific
Premier to consummate the Bank Merger Agreement, and Pacific Premier has the corporate power
and authority to execute, deliver and perform its obligations under the Bank Merger Agreement,
#52027286_v14 44
in each case, subject to the receipt of all necessary approvals of Governmental Authorities and the
approval by PPBI’s shareholders of the issuance of PPBI Common Stock in the Merger.
(e) Corporate Authority. Subject to the approval of the issuance of the PPBI
Common Stock in the Merger by a majority of the votes cast at the PPBI Meeting, this Agreement
and the Transaction and the Bank Merger and the Bank Merger Agreement have been authorized
by all necessary corporate action of PPBI, the PPBI Board, Pacific Premier and the Pacific Premier
Board, as applicable, and will be authorized by all necessary corporate action of the sole
shareholder of Pacific Premier. This Agreement has been duly executed and delivered by PPBI
and, assuming due authorization, execution and delivery by Plaza, this Agreement is a valid and
legally binding agreement of PPBI enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights
or by general equity principles).
(f) Regulatory Approvals; No Defaults.
(i) No consents or approvals of, or waivers by, or notices to, or filings
or registrations with, any Governmental Authority or with any third party are required to be made
or obtained by PPBI or any of its Subsidiaries in connection with the execution, delivery or
performance by PPBI of this Agreement and by Pacific Premier of the Bank Merger Agreement
or to consummate the Transaction, except for (A) filings of applications or notices with, and
approvals or waivers by, the FRB and the DBO, as required, (B) filings with the SEC and state
securities authorities, as applicable, in connection with the issuance of PPBI Common Stock in the
Merger, (C) approval of listing of such PPBI Common Stock on the Nasdaq, and (D) the filing of
(1) the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the
DGCL and (2) the Bank Merger Agreement with the Secretary of State of the State of California
and the DBO pursuant to the CGCL and CFC. As of the date hereof, PPBI is not aware of any
reason why the approvals set forth above and referred to in Section 7.01(b) will not be received in
a timely manner and without the imposition of a condition, restriction or requirement of the type
described in Section 7.01(b).
(ii) Subject to receipt, or the making, of the consents, approvals, waivers
and filings referred to in the preceding paragraph and expiration of the related waiting periods, the
execution, delivery and performance of this Agreement by PPBI and the Bank Merger Agreement
by Pacific Premier and the consummation of the Transaction do not and will not (A) constitute a
breach or violation of, or a default under, or give rise to any Lien, any acceleration of remedies or
any right of termination under, any law, code, ordinance, rule or regulation or any judgment,
decree, injunction, order, governmental permit or license, or agreement, indenture or instrument
of PPBI or of any of its Subsidiaries or to which PPBI or any of its Subsidiaries or any of their
respective properties is subject or bound, (B) constitute a breach or violation of, or a default under,
the articles of incorporation or bylaws (or similar governing documents) of PPBI or any of its
Subsidiaries or (C) require any consent or approval under any such law, code, ordinance, rule,
regulation, judgment, decree, injunction, order, governmental permit or license, agreement,
indenture or instrument.
#52027286_v14 45
(g) Financial Reports and Securities Documents; Material Adverse Effect.
(i) PPBI’s Annual Report on Form 10-K for the year ended
December 31, 2016 and all other reports, registration statements, definitive proxy statements or
information statements filed or to be filed by it subsequent to December 31, 2016 under the
Securities Act, or under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act in the form filed or
to be filed (collectively, “PPBI’s Securities Documents”) with the SEC, as of the date filed or to
be filed, (A) complied or will comply in all material respects as to form with the applicable
requirements under the Securities Act or the Exchange Act, as the case may be and (B) did not and
will not contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that information as of a later date shall be
deemed to modify information as of an earlier date; and each of the consolidated statements of
financial condition contained in or incorporated by reference into any such Securities Documents
(including the related notes and schedules thereto) fairly presents, or will fairly present, the
consolidated financial position of PPBI and its Subsidiaries as of its date, and each of the
consolidated statements of operations and stockholders’ equity and other comprehensive income
(loss) and cash flows or equivalent statements in such Securities Documents (including any related
notes and schedules thereto) fairly presents, or will fairly present, the consolidated results of
operations, changes in stockholders’ equity and other comprehensive income (loss) and cash flows,
as the case may be, of PPBI and its Subsidiaries for the periods to which they relate, in each case
in accordance with GAAP consistently applied during the periods involved, except in each case as
may be noted therein.
(ii) Since June 30, 2017, no event has occurred or circumstance arisen
that, individually or taken together with all other facts, circumstances and events (described in any
paragraph of this Section 5.04 or otherwise), is reasonably likely to have a Material Adverse Effect
with respect to PPBI.
(h) Legal Proceedings. No litigation, arbitration, claim or other proceeding
before any court or governmental agency is pending against PPBI or its Subsidiaries and, to PPBI’s
Knowledge, no such litigation, arbitration, claim or other proceeding has been threatened and there
are no facts which could reasonably give rise to such litigation, arbitration, claim or other
proceeding in any such case that, individually or in the aggregate, has or could be reasonably
expected to have a Material Adverse Effect with respect to PPBI. Neither PPBI nor any of its
Subsidiaries nor any of their respective properties is a party to or subject to any order, judgment,
decree or regulatory restrictions that, individually or in the aggregate, has or could reasonably be
expected to have a Material Adverse Effect with respect to PPBI.
(i) No Brokers. No action has been taken by PPBI or its Subsidiaries that
would give rise to any valid claim against any party hereto for a brokerage commission, finder’s
fee or other like payment with respect to the Transaction, other than a fee payable by PPBI to ▇.▇.
▇▇▇▇▇▇▇▇ & Co.
#52027286_v14 46
(j) Regulatory Matters.
(i) Since January 1, 2014, PPBI and each of its Subsidiaries has duly
filed with the appropriate bank regulatory authorities in substantially correct form the monthly,
quarterly and annual reports required to be filed under applicable laws and regulations, and such
reports were in all material respects complete and accurate and in compliance with the
requirements of applicable laws and regulations. In connection with the most recent examination
of PPBI and each of its Subsidiaries by the appropriate regulatory authorities, neither PPBI nor
any of its Subsidiaries was required to correct or change any action, procedure or proceeding which
PPBI believes in good faith has not now been corrected or changed, other than corrections or
changes which, if not made, either individually or in the aggregate, would not have a Material
Adverse Effect on PPBI. The most recent regulatory rating given to Pacific Premier as to
compliance with the Community Reinvestment Act is “satisfactory.” To the Knowledge of PPBI,
since Pacific Premier’s last regulatory examination of Community Reinvestment Act compliance,
Pacific Premier has not received any complaints as to Community Reinvestment Act compliance.
(ii) Neither PPBI nor any of its Subsidiaries nor any of any of their
respective properties is a party to or is subject to any order, decree, directive, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter or similar
submission to, or extraordinary supervisory letter from, nor has PPBI or any of its Subsidiaries
adopted any policies, procedures or board resolutions at the request or suggestion of, any
Governmental Authority. PPBI and its Subsidiaries have paid all assessments made or imposed
by any Governmental Authority.
(iii) Neither PPBI nor any its Subsidiaries has been advised by, and does
not have any Knowledge of facts which would reasonably be expected to give rise to an advisory
notice by, any Governmental Authority that such Governmental Authority is contemplating issuing
or requesting (or is considering the appropriateness of issuing or requesting) any such order,
decree, directive, agreement, memorandum of understanding, commitment letter, supervisory
letter or similar submission or any request for the adoption of any policy, procedure or board
resolution.
(iv) (A) No Governmental Authority has initiated since January 1, 2014
or has pending any proceeding, enforcement action or, to PPBI’s Knowledge, investigation or
inquiry into the business, operations, policies, practices or disclosures of PPBI or any of its
Subsidiaries (other than normal examinations conducted by a Governmental Authority in the
ordinary course of the business of PPBI or the applicable Subsidiary), or, to PPBI’s Knowledge,
threatened any of the foregoing, and (B) there is no unresolved violation, criticism, comment or
exception by any Governmental Authority with respect to any report or statement relating to any
examinations or inspections of PPBI or its Subsidiaries, except in each case in subparagraphs (A)
and (B), that did not have a Material Adverse Effect.
(v) PPBI and Pacific Premier are “well-capitalized” (as that term is
defined at 12 CFR §225.2(r) or the relevant regulation of its primary federal bank regulator) and
the rating of Pacific Premier under the CRA is no less than “satisfactory.” Neither PPBI nor Pacific
Premier has received any notification from a Governmental Authority that their status as “well-
capitalized” or “satisfactory” for CRA purposes will change within one year, nor does PPBI have
#52027286_v14 47
Knowledge of any conditions or circumstances that would result in a CRA rating of less than
“satisfactory” or material criticism from regulators with respect to discriminatory lending
practices.
(k) Compliance With Laws. Each of PPBI and its Subsidiaries:
(i) is, and at all times since January 1, 2014 has been in material
compliance with all applicable federal, state, local and foreign statutes, laws, codes, regulations,
ordinances, rules, judgments, injunctions, orders, decrees or policies and/or guidelines of a
Governmental Authority applicable thereto or to the employees conducting such businesses,
including, without limitation, Section 23A and 23B of the Federal Reserve Act and FRB
regulations pursuant thereto, the Equal Credit Opportunity Act, the Fair Housing Act, the
Community Reinvestment Act, the Home Mortgage Disclosure Act, the Bank Secrecy Act, the
USA PATRIOT Act, the Electronic Fund Transfer Act and Regulation E of the FRB, all other
applicable fair lending laws and other laws relating to discriminatory business practices and
Environmental Laws and all posted and internal policies of PPBI and its Subsidiaries related to
customer data, privacy and security;
(ii) has, and at all times since January 1, 2014 has had, all permits,
licenses, franchises, authorizations, orders and approvals of, and has made all filings, applications
and registrations with, all Governmental Authorities (and has paid all fees and assessments due
and payable in connection therewith) that are required in order to permit them to own or lease their
properties and to conduct their businesses as presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force and effect and, to PPBI’s
Knowledge, no suspension or cancellation of any of them is threatened; and
(iii) has received no notification or communication from any
Governmental Authority (A) asserting that PPBI or any of its Subsidiaries is not in compliance
with any of the statutes, regulations or ordinances which such Governmental Authority enforces
or (B) threatening to revoke any license, franchise, permit or governmental authorization (nor, to
PPBI’s Knowledge, do any grounds for any of the foregoing exist).
(l) Employee Benefit Plans.
(i) All material benefit and compensation plans, contracts, policies or
arrangements maintained, contributed to, obligated to be contributed to, or sponsored by PPBI and
Pacific Premier for the benefit of current or former employees of PPBI and its Subsidiaries and
current or former directors or independent contractors of PPBI and its Subsidiaries including, but
not limited to, “employee benefit plans” within the meaning of Section 3(3) of ERISA, any
pension, retirement, profit sharing, medical, life, accidental death and dismemberment, disability,
dental, vision, compensation, severance, termination pay, salary continuation, unemployment,
workers’ compensation, vacation, sick pay, paid-time off, retention, employment, consulting,
change in control, fringe benefit, deferred compensation, stock option, stock purchase, stock
appreciation rights or other stock-based incentive, cafeteria or flexible benefit, adoption or
educational assistance, and bonus or other cash-based incentive, or other similar plans, agreements,
programs, policies or other arrangements (whether written or oral and whether or not qualified or
funded) or any such plan for which PPBI and its Subsidiaries may have any liability including,
#52027286_v14 48
without limitation, as a result of being deemed a single employer with any entity under Section
4001(b)(1) of ERISA or Section 414 of the Code (collectively, the “PPBI Benefit Plans”), have
been provided or made available to Plaza.
(ii) Each PPBI Benefit Plan has been established and administered to
date in all material respects in accordance with the applicable provisions of ERISA, the Code and
applicable law and with the terms and provisions of all documents, contracts or agreements
pursuant to which such PPBI Benefit Plan is maintained.
(iii) Other than as disclosed and identified as such in Section 5.04(l)(iii)
of PPBI’s Disclosure Schedule, neither PPBI nor any entity considered to be a single employer
with PPBI under Section 4001(b)(1) of ERISA or Section 414 of the Code maintains or contributes
to any pension plan subject to Title IV of ERISA, to any multiemployer plan (as defined in
4001(a)(3) of ERISA), or to any PPBI Benefit Plan providing for retiree health and life benefits,
other than coverage as may be required under Section 4980B of the Code or Part 6 of Title I of
ERISA or under the continuation of coverage provisions of the laws of any state or locality.
(m) Tax Matters. (i) All Tax Returns that are required to be filed on or before
the Closing Date (taking into account any extensions of time within which to file that have not
expired) by or with respect to PPBI or any of its Subsidiaries have been or will be timely filed on
or before the Closing Date, (ii) all such Tax Returns are or will be true, correct and complete in all
material respects, (iii) all Taxes due and payable by or with respect to PPBI or any of its
Subsidiaries (whether or not shown as due on any Tax Return) have been timely paid in full, (iv)
the unpaid Taxes of PPBI and its Subsidiaries did not, as of the date of the most recent financial
statements, exceed the reserve for Tax liability set forth on the face of such financial statements
and do not exceed that reserve as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of PPBI and its Subsidiaries in filing its Tax Returns,
(v) all deficiencies asserted or assessments made as a result of examinations conducted by any
taxing authority have been paid in full, other than those being contested through appropriate
proceedings, (vi) no issues that have been raised by the relevant taxing authority in connection
with the examination of any of the Tax Returns referred to in clause (v) are currently pending, and
(vii) no claim has been made in writing in the past five (5) years by a taxing authority in a
jurisdiction where PPBI or any of its Subsidiaries does not already file Tax Returns that PPBI or
a Subsidiary is or may be subject to taxation by that jurisdiction.
(o) Ownership of Plaza Common Stock. None of PPBI or any of its
Subsidiaries, or to PPBI’s Knowledge, any of its other affiliates or associates (as such terms are
defined under the Exchange Act), owns beneficially or of record, directly or indirectly, or is a party
to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of, shares of Plaza Common Stock (other than shares held in a fiduciary capacity that
are beneficially owned by third parties or as a result of debts previously contracted).
(p) Absence of Certain Changes or Events. Since January 1, 2015, except as
specifically contemplated by or as disclosed in this Agreement, there has not been any Material
Adverse Effect with respect to PPBI or any event or development that is reasonably expect to have,
either individually or in the aggregate, a Material Adverse Effect with respect to PPBI.
#52027286_v14 49
(q) Disclosure. The representations and warranties contained in this Section
5.04, when considered as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and information contained in
this Section 5.04 not misleading.
(r) No Additional Representations. Except for the representations and
warranties made by PPBI in this Section 5.04 and as Previously Disclosed, neither PPBI nor any
other Person makes any express or implied representation or warranty with respect to PPBI, its
Subsidiaries, or their respective businesses, operations, assets, liabilities, conditions (financial or
otherwise) or prospects, and PPBI hereby expressly disclaims any such other representations or
warranties.
ARTICLE VI
COVENANTS
6.01 Reasonable Best Efforts. Subject to the terms and conditions of this Agreement,
each of Plaza and PPBI agrees to use its commercially reasonable best efforts in good faith, and to
cause their respective Subsidiaries to use their commercially reasonable best efforts in good faith,
to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper
or desirable, or advisable under applicable laws, so as to permit consummation of the Transaction
as promptly as practicable and otherwise to enable consummation of the Transaction, including
the satisfaction of the conditions set forth in Article VII hereof, and shall cooperate fully with the
other party hereto to that end.
6.02 Intentionally Omitted.
6.03 Registration Statement; Solicitation of Plaza Shareholder Consents.
(a) PPBI agrees to prepare a registration statement on Form S-4 or other
applicable form (the “Registration Statement”) to be filed by PPBI with the SEC in connection
with the issuance of the shares of PPBI Common Stock to the Plaza shareholders as the Merger
Consideration in the Merger (including a consent solicitation statement for the Shareholder
Approval and a prospectus constituting a part thereof (the “Plaza Consent Statement”) and all
related documents). Plaza shall prepare and furnish such information relating to it, its Subsidiaries
and their respective directors, officers and shareholders as may be reasonably required in
connection with the above referenced documents based on its knowledge of and access to the
information required for said documents, and Plaza, and its legal, financial and accounting
advisors, shall have the right to review in advance and comment on such Registration Statement
prior to its filing. Plaza agrees to cooperate with PPBI and PPBI’s counsel and accountants in
requesting and obtaining appropriate opinions, consents and letters from its financial advisor and
independent auditor in connection with the Registration Statement and the Plaza Consent
Statement. PPBI shall use its best efforts to file, or cause to be filed, the Registration Statement
with the SEC within forty-five (45) days of the date of this Agreement or as promptly as reasonably
practicable thereafter. Each of Plaza and PPBI agrees to use its reasonable best efforts to cause
the Registration Statement to be declared effective under the Securities Act as promptly as
reasonably practicable after the filing thereof. PPBI also agrees to use its reasonable best efforts
#52027286_v14 50
to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry
out the transactions contemplated by this Agreement. Plaza shall, within three Business Days from
the date when the Registration Statement is declared effective under the Securities Act, mail at its
expense the Plaza Consent Statement to all holders of record of outstanding shares of Plaza
Common Stock. The Plaza Consent Statement shall include a form of written consent reasonably
acceptable to PPBI soliciting Plaza shareholders to vote their shares of Plaza Common Stock in
favor of this Agreement and the Transactions provided hereunder (such written consents, when
duly executed and delivered by Plaza shareholders, together with the required form of consents to
be delivered by the Manager and the Shareholders set forth as Exhibit II to the Support Agreement
and the Shareholder Agreement, respectively, which are attached to this Agreement as Annex A
and Annex B, respectively, being referred to collectively as the “Plaza Shareholder Consents”).
The Plaza Consent Statement shall also contain the notice of availability of appraisal rights and
related disclosure required by Section 262 of the DGCL.
(b) Each of Plaza and PPBI agrees that none of the information supplied or to
be supplied by it for inclusion or incorporation by reference in (i) the Registration Statement shall,
at the time the Registration Statement and each amendment or supplement thereto, if any, becomes
effective under the Securities Act, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading and (ii) the Plaza Consent Statement and any amendment or supplement thereto shall,
at the date of mailing to Plaza shareholders and at all times during which Plaza Shareholder
Consents are solicited, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading. Each
of Plaza and PPBI further agrees that if such party shall become aware prior to the date of
effectiveness of the Registration Statement of any information furnished by such party that would
cause any of the statements in the Registration Statement or the Plaza Consent Statement to be
false or misleading with respect to any material fact, or to omit to state any material fact necessary
to make the statements therein not false or misleading, to promptly inform the other parties thereof
and to take the necessary steps to correct the Registration Statement or the Plaza Consent
Statement.
(c) PPBI agrees to advise Plaza promptly in writing after PPBI receives notice
thereof, of the time when the Registration Statement has become effective or any supplement or
amendment has been filed, of the issuance of any stop order or the suspension of the qualification
of PPBI Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent
PPBI is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC
for the amendment or supplement of the Registration Statement or for additional information.
6.04 Regulatory Filings.
(a) Each of PPBI and Plaza and their respective Subsidiaries shall cooperate
and use their respective reasonable best efforts to prepare all documentation, to effect all filings
and to obtain all permits, consents, approvals and authorizations of all Governmental Authorities
necessary to consummate the Transaction; and PPBI shall use its best efforts to make any initial
application filings with Governmental Authorities within thirty (30) days of the date of this
Agreement or as promptly as reasonably practicable thereafter. Each of PPBI and Plaza shall have
the right to review in advance, and to the extent practicable, each shall consult with the other, in
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each case subject to applicable laws relating to the exchange of information, with respect to all
written information submitted to any Governmental Authority in connection with the Transaction,
provided that PPBI shall not be required to provide Plaza with confidential portions of any filing
with a Governmental Authority. In exercising the foregoing right, each of such parties agrees to
act reasonably and as promptly as practicable. Each party hereto agrees that it shall consult with
the other party hereto with respect to the obtaining of all permits, consents, approvals, waivers and
authorizations of all Governmental Authorities necessary or advisable to consummate the
Transaction, and each party shall keep the other party apprised of the status of material matters
relating to completion of the Transaction. Each party hereto further agrees to provide the other
party with a copy of all correspondence to or from any Governmental Authority in connection with
the Transaction, provided that PPBI shall not be required to provide Plaza with confidential
portions of any filing with a Governmental Authority. In addition, Plaza shall use its reasonable
best efforts to ensure that representatives of ▇▇▇▇▇▇▇▇▇ Fund Manager GP, LLC (“▇▇▇▇▇▇▇▇▇”) shall
prepare all documentation to effect all filings and to obtain all permits, consents, approvals and
authorizations of all third parties and Governmental Authorities necessary to consummate the
Transaction. To the extent not prohibited by applicable law, Plaza shall use its reasonable best
efforts to provide PPBI with a copy of all correspondence from ▇▇▇▇▇▇▇▇▇ to any Governmental
Authority or from any Governmental Authority to ▇▇▇▇▇▇▇▇▇ in connection with the Transactions.
(b) Each party agrees, upon request, to furnish the other party with all
information concerning itself, its Subsidiaries, directors, officers and stockholders and such other
matters as may be reasonably necessary or advisable in connection with any filing, notice or
application made by or on behalf of such other party or any of their Subsidiaries to any
Governmental Authority.
6.05 Press Releases. Plaza and PPBI shall consult with each other before issuing any
press release with respect to the Transaction or this Agreement and shall not issue any such press
release or make any such public statements without the prior consent of the other party, which
shall not be unreasonably withheld; provided, however, that PPBI or Plaza may, without the prior
consent of the other party (but after such consultation, to the extent practicable under the
circumstances), issue such press release or make such public statements as may, upon the advice
of outside counsel, be required by law or the rules or regulations of the SEC or Nasdaq. Plaza and
PPBI shall cooperate to develop all public announcement materials and make appropriate
management available at presentations related to the Transaction as reasonably requested by the
other party.
6.06 Access; Information.
(a) Plaza agrees that upon reasonable notice and subject to applicable laws
relating to the exchange of information, it shall afford PPBI and PPBI’s officers, employees,
counsel, accountants and other authorized representatives such access during normal business
hours throughout the period prior to the Effective Time to the books, records (including, without
limitation, Tax Returns and work papers of independent auditors), systems, properties, personnel
and advisors of Plaza and its Subsidiaries and to such other information relating to Plaza and its
Subsidiaries as PPBI may reasonably request, provided that PPBI shall coordinate any and all
meetings with Plaza personnel with one or more designated representatives of Plaza, and, during
such period, Plaza shall furnish promptly to PPBI (i) a copy of each report, schedule, registration
#52027286_v14 52
statement and other document filed or received during such period pursuant to the requirements of
federal or state banking, lending, securities, consumer finance or privacy laws and (ii) all other
information concerning the business, properties and personnel of Plaza and its Subsidiaries as
PPBI may reasonably request. Notwithstanding the foregoing, Plaza shall not be required to
provide access to or disclose information where such access or disclosure would jeopardize the
attorney-client privilege of Plaza or any other Person in possession or control of such information
(after giving due consideration to the existence of any common interest, joint defense or similar
agreement between the parties) or contravene any law, rule, regulation, order, judgment, decree,
fiduciary duty or agreement entered into prior to the date of this Agreement, provided that in any
such event, Plaza will work in good faith with PPBI to make appropriate substitute disclosure
arrangements.
(b) During the period from the date of this Agreement to the Effective Time,
Plaza shall, upon the request of PPBI, cause one or more of its designated representatives to confer
on a monthly or more frequent basis with representatives of PPBI regarding its consolidated
financial condition, operations and business and matters relating to the completion of the
Transaction. Subject to applicable law, as soon as reasonably available, but in no event more than
15 days after the end of each calendar quarter ending after the date of this Agreement (other than
the last quarter of each fiscal year ending December 31), Plaza will deliver to PPBI its consolidated
balance sheet and consolidated statements of income, comprehensive income, equity and cash
flows, without related notes, for such quarter prepared in accordance with GAAP, and, as soon as
reasonably available, but in no event more than 30 days after the end of each fiscal year, Plaza will
deliver to PPBI its consolidated balance sheet and consolidated statements of income,
comprehensive income, equity and cash flows for such year prepared in accordance with GAAP.
Subject to applicable law, within 15 days after the end of each month, Plaza will deliver to PPBI
a consolidated balance sheet and consolidated statements of income, without related notes, for
such month prepared in accordance with GAAP.
(c) PPBI agrees that upon reasonable notice and subject to applicable laws
relating to the exchange of information, it shall afford Plaza and Plaza’s officers, employees,
counsel, accountants and other authorized representatives such access during normal business
hours throughout the period prior to the Effective Time to the books, records (including, without
limitation, Tax Returns and work papers of independent auditors), systems, properties, personnel
and advisors of PPBI and its Subsidiaries and to such other information relating to PPBI and its
Subsidiaries as Plaza may reasonably request, provided that Plaza shall coordinate any and all
meetings with PPBI personnel with one or more designated representatives of PPBI, and, during
such period, PPBI shall furnish promptly to Plaza (i) a copy of each report, schedule, registration
statement and other document filed or received during such period pursuant to the requirements of
federal or state banking, lending, securities, consumer finance or privacy laws and (ii) all other
information concerning the business, properties and personnel of PPBI and its Subsidiaries as
Plaza may reasonably request. Notwithstanding the foregoing, PPBI shall not be required to
provide access to or disclose information where such access or disclosure would jeopardize the
attorney-client privilege of PPBI or any other Person in possession or control of such information
(after giving due consideration to the existence of any common interest, joint defense or similar
agreement between the parties) or contravene any law, rule, regulation, order, judgment, decree,
fiduciary duty or agreement entered into prior to the date of this Agreement, provided that in any
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such event, PPBI will work in good faith with Plaza to make appropriate substitute disclosure
arrangements.
(d) During the period from the date of this Agreement to the Effective Time,
PPBI shall, upon the request of Plaza, cause one or more of its designated representatives to confer
on a monthly or more frequent basis with representatives of Plaza regarding its consolidated
financial condition, operations and business and matters relating to the completion of the
Transaction. Subject to applicable law, as soon as reasonably available, but in no event more than
15 days after the end of each calendar quarter ending after the date of this Agreement (other than
the last quarter of each fiscal year ending December 31), PPBI will deliver to Plaza its consolidated
balance sheet and consolidated statements of income, comprehensive income, equity and cash
flows, without related notes, for such quarter prepared in accordance with GAAP, and, as soon as
reasonably available, but in no event more than 30 days after the end of each fiscal year, PPBI will
deliver to Plaza its consolidated balance sheet and consolidated statements of income,
comprehensive income, equity and cash flows for such year prepared in accordance with GAAP.
Subject to applicable law, within 15 days after the end of each month, PPBI will deliver to Plaza
a consolidated balance sheet and consolidated statements of income, without related notes, for
such month prepared in accordance with GAAP.
(e) All information furnished pursuant to this Section 6.06 shall be subject to
the provisions of the Mutual Confidentiality and Non-Disclosure Agreement, dated as of June 27,
2017, by and between PPBI, Plaza and ▇▇▇▇▇▇▇▇▇ (the “Confidentiality Agreement”).
(f) No investigation by any of the parties or their respective representatives
shall affect the representations, warranties, covenants or agreements of the other parties set forth
herein.
6.07 Acquisition Proposals.
(a) Plaza agrees that it shall, and shall direct and use its reasonable best efforts
to cause its Affiliates, directors, officers, employees, agents and representatives (including,
without limitation, any investment banker, financial advisor, attorney, accountant or other
representative retained by it) (all of the foregoing, collectively, “Representatives”) to, immediately
cease any discussions or negotiations with any other parties that may be ongoing with respect to
the possibility or consideration of any Acquisition Proposal, and will use its reasonable best efforts
to enforce any confidentiality or similar agreement relating to any Acquisition Proposal, including
by requesting the other party to promptly return or destroy any confidential information previously
furnished by or on behalf of Plaza or any of its Subsidiaries thereunder and by specifically
enforcing the terms thereof in a court of competent jurisdiction. From the date of this Agreement
through the Effective Time, none of Plaza, its Subsidiaries nor any of their Affiliates shall, and
each of the foregoing shall cause their respective directors, officers or employees or any
Representative retained by them not to, directly or indirectly through another Person, (i) solicit,
initiate or encourage (including by way of furnishing information or assistance), or take any other
action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal
or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) provide
any confidential information or data to any Person relating to any Acquisition Proposal,
(iii) participate in any discussions or negotiations regarding any Acquisition Proposal, (iv) waive,
#52027286_v14 54
terminate, modify or fail to enforce any provision of any contractual “standstill” or similar
obligations of any Person other than PPBI or its Affiliates, (v) approve or recommend, propose to
approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger
agreement, asset purchase agreement or share exchange agreement, option agreement or other
similar agreement related to any Acquisition Proposal or propose to do any of the foregoing, or
(vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition
Proposal; provided, however, that at any time prior to obtaining the Shareholder Approval, if the
Plaza Board determines in good faith, after consulting with its outside legal and financial advisors,
that the failure to do so would breach, or would reasonably be expected to result in a breach of,
the Plaza Board’s fiduciary duties under applicable law, Plaza may, in response to a bona fide,
written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Plaza Board
determines in good faith constitutes a Superior Proposal, (1) furnish information with respect to
itself to any Person making such a Superior Proposal pursuant to a confidentiality agreement on
terms that are in all material respects no less restrictive to such Person than the terms contained in
the Confidentiality Agreement are to PPBI (as determined by Plaza after consultation with its
outside counsel) (the “Acceptable Confidentiality Agreement”), and (2) participate in discussions
or negotiations regarding such a Superior Proposal. Plaza agrees that it shall concurrently provide
to PPBI any information (whether such information is confidential, nonpublic or otherwise)
concerning Plaza or Plaza Bank that may be provided to any other Person in connection with any
Superior Proposal which has not previously been provided to PPBI. For purposes of this
Agreement, the term “Acquisition Proposal” means any inquiry, proposal or offer, filing of any
regulatory application or notice or disclosure of an intention to do any of the foregoing from any
Person relating to any (w) direct or indirect acquisition or purchase of a business that constitutes
10% or more of the total revenues, net income, assets or deposits of Plaza and its Subsidiaries
taken as a whole, (x) direct or indirect acquisition or purchase of any class of Equity Securities
representing 10% or more of the voting power of Plaza or Plaza Bank, (y) tender offer or exchange
offer that if consummated would result in any person beneficially owning 10% or more of any
class of Equity Securities of Plaza or Plaza Bank or (z) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction involving Plaza or
Plaza Bank, other than the Transaction contemplated by this Agreement. For purposes of this
Agreement, the term “Superior Proposal” means any bona fide written proposal made by a third
party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger,
consolidation, business combination, recapitalization, liquidation, dissolution or similar
transaction, for consideration consisting of cash and/or securities, more than 50% of the combined
voting power of the shares of Plaza Common Stock then outstanding or all or substantially all of
Plaza’s consolidated assets, which the Plaza Board determines in good faith, after taking into
account all legal, financial, regulatory and other aspects of the proposal and the person making the
proposal (including any break-up fees, expense reimbursement provisions and conditions to
consummation), and after consulting with Plaza’s financial advisor (which shall be a recognized
investment banking firm) and outside counsel, (i) is more favorable from a financial point of view
to its shareholders than the Merger, (ii) is reasonably likely to be consummated on the terms set
forth, and (iii) for which financing, to the extent required, is then committed or which, in the good
faith judgment of the Plaza Board, is reasonably likely to be obtained by such third party.
(b) Neither the Plaza Board nor any committee thereof shall (or shall agree or
resolve to) (i) withdraw or modify in a manner adverse to PPBI, or propose publicly to withdraw
or modify in a manner adverse to PPBI, the recommendation or declaration of advisability by such
#52027286_v14 55
Plaza Board or any such committee of this Agreement or the Merger in connection with the
solicitation of Plaza Shareholder Consents or otherwise (any such action, resolution or agreement
to take such action being referred to herein as an “Adverse Recommendation Change”), (ii)
recommend, declare advisable or propose to recommend or declare advisable the approval or
adoption of any Acquisition Proposal or resolve or agree to take any such action, or adopt or
approve any Acquisition Proposal, or (iii) cause or permit Plaza to enter into any letter of intent,
memorandum of understanding, agreement in principle, acquisition agreement, merger agreement,
option agreement, joint venture agreement, partnership agreement or other agreement (each, an
“Acquisition Agreement”) constituting or related to, or which would reasonably be expected to
lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement), or resolve
or agree to take any such action. Notwithstanding the foregoing, at any time prior to the
Shareholder Approval, the Plaza Board may (x) effect an Adverse Recommendation Change or (y)
in response to a Superior Proposal, terminate this Agreement pursuant to Section 8.01(f) to accept
such Superior Proposal, in the case of each of clauses (x) and (y), if the Plaza Board has determined
in good faith, after consultation with its outside legal counsel, that the failure to do so would be
inconsistent with its fiduciary duties to the shareholders of Plaza under applicable law, provided
that the Plaza Board may not effect such an Adverse Recommendation Change or terminate this
Agreement pursuant to Section 8.01(f) unless the Plaza Board shall have first provided written
notice to PPBI (an “Adverse Change Notice”) at least three Business Days prior to such action that
it is prepared to take such action and, if such action is in response to a Superior Proposal, the
following additional conditions are satisfied: (A) such notice shall attach the most current version
of any written agreement relating to the transaction that constitutes such Superior Proposal and (B)
PPBI does not make, within three Business Days after the receipt of such notice, a proposal that
would, in the reasonable good faith judgment of the Plaza Board (after consultation with a financial
advisor of national reputation and outside legal counsel), cause the offer previously constituting a
Superior Proposal to no longer constitute a Superior Proposal (it being understood and agreed that
any amendment or modification of such Superior Proposal shall require a new Adverse Change
Notice and a new three Business Day period). Plaza agrees that, during the three Business Day
period prior to its effecting an Adverse Recommendation Change or termination pursuant to
Section 8.01(f), Plaza and its officers, directors and representatives shall negotiate in good faith
with PPBI and its officers, directors and representatives regarding any revisions to the terms of the
Merger and the other transactions contemplated by this Agreement proposed by PPBI.
Notwithstanding anything to the contrary in this Agreement, Plaza shall not be entitled to enter
into any agreement (other than an Acceptable Confidentiality Agreement) with respect to a
Superior Proposal unless this Agreement has been terminated by its terms pursuant to Section 8.01,
and Plaza has paid to PPBI the Termination Fee.
(c) In addition to the obligations of Plaza set forth in this Section 6.07, Plaza
shall promptly (within 24 hours) advise PPBI orally and in writing of its receipt of any Acquisition
Proposal.
(d) Plaza agrees that any violation of the restrictions set forth in this Section
6.07 by any Representative of Plaza or its Subsidiaries shall be deemed a breach of this Section
6.07 by Plaza.
(e) The parties hereto agree that irreparable damage would occur in the event
any of the restrictions set forth in this Section 6.07 were violated by Plaza, its Subsidiaries or any
#52027286_v14 56
Representative of Plaza or its Subsidiaries. It is accordingly agreed that PPBI shall be entitled to
an injunction or injunctions to prevent breaches of Section 6.07 and to enforce specifically the
terms and provisions thereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which PPBI is entitled at law or in equity. In the event
attorneys’ fees or other costs are incurred to secure performance of any of the obligations herein
provided for, or to establish damages for the breach thereof, or to obtain any other appropriate
relief, whether by way of prosecution or defense, PPBI shall be entitled to recover reasonable
attorneys’ fees and costs incurred therein.
(f) Nothing contained in this Agreement shall prevent Plaza or the Plaza Board
from complying with Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal.
6.08 Certain Policies. Prior to the Effective Date, upon the request of PPBI, Plaza shall,
and shall cause its Subsidiaries to, consistent with GAAP and applicable banking laws and
regulations, use their commercially reasonable best efforts to modify or change their Loan, OREO,
accrual, reserve, Tax, litigation and real estate valuation policies and practices (including loan
classifications and levels of reserves) so as to be applied on a basis that is consistent with that of
PPBI; provided, however, that no such modifications or changes need be made prior to the
satisfaction of the conditions set forth in Section 7.01(b); and further provided that in any event,
no such modification or change made by Plaza or any of its Subsidiaries pursuant to this Section
6.08 shall constitute or be deemed to be a breach, violation of or failure to satisfy any
representation, warranty, covenant, agreement, condition or other provision of this Agreement or
otherwise be considered in determining whether any such breach, violation or failure to satisfy
shall have occurred. The recording of any such adjustments shall not be deemed to imply any
misstatement of previously furnished financial statements or information and shall not be
construed as concurrence of Plaza or its management with any such adjustments.
6.09 Nasdaq Listing. PPBI shall, as promptly as practicable, file all documents, take all
actions reasonably necessary and otherwise use its reasonable best efforts to list, prior to the
Effective Date, on the Nasdaq the shares of PPBI Common Stock to be issued to the Plaza
shareholders (i) as the Merger Consideration in the Merger and (ii) to convert the Plaza Restricted
Stock into shares of PPBI Common Stock.
6.10 Indemnification.
(a) From and after the Effective Time through the sixth anniversary of the
Effective Time, PPBI and the Surviving Corporation (each an “Indemnifying Party”) shall
indemnify and hold harmless each present and former director, officer and employee of Plaza or a
Plaza Subsidiary, as applicable, determined as of the Effective Time (the “Indemnified Parties”)
against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses,
claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative, arising out of matters
existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or
after the Effective Time, arising in whole or in part out of or pertaining to the fact that he or she
was a director, officer, employee, fiduciary or agent of Plaza or any Plaza Subsidiary or is or was
serving at the request of Plaza or any Plaza Subsidiary as a director, officer, employee, fiduciary
or agent of another corporation, partnership, joint venture, trust or other enterprise, including,
#52027286_v14 57
without limitation, matters related to the negotiation, execution and performance of this Agreement
or consummation of the Transaction, to the fullest extent which such Indemnified Parties would
be entitled under the Plaza Articles and the Plaza Bylaws or any agreement, arrangement or
understanding which has been set forth in Section 6.10 of Plaza’s Disclosure Schedule, in each
case as in effect on the date hereof. PPBI shall also cause the Surviving Corporation to advance
expenses as incurred by such Indemnified Parties to the same extent as such persons are entitled
to advancement of expenses as of the date of this Agreement by Plaza pursuant to the Plaza Articles
and the Plaza Bylaws or any agreement, arrangement or understanding which has been set forth in
Section 6.10 of Plaza’s Disclosure Schedule, in each case as in effect on the date hereof.
(b) Any Indemnified Party wishing to claim indemnification under this Section
6.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly
notify the Indemnifying Party, but the failure to so notify shall not relieve the Indemnifying Party
of any liability it may have to such Indemnified Party if such failure does not actually prejudice
the Indemnifying Party. In the event of any such claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), (i) the Indemnifying Party shall have the right
to assume the defense thereof and the Indemnifying Party shall not be liable to such Indemnified
Parties for any legal expenses of other counsel or any other expenses subsequently incurred by
such Indemnified Parties in connection with the defense thereof, except that if the Indemnifying
Party elects not to assume such defense or counsel for the Indemnified Parties advises that there
are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified
Parties that make joint representation inappropriate, the Indemnified Parties may retain counsel
which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay,
promptly as statements therefor are received, the reasonable fees and expenses of such counsel for
the Indemnified Parties (which may not exceed one firm in any jurisdiction unless the Indemnified
Parties have conflicts of interest), (ii) the Indemnified Parties will cooperate in the defense of any
such matter, (iii) the Indemnifying Party shall not be liable for any settlement effected without its
prior written consent, which shall not be unreasonably withheld, and (iv) the Indemnifying Party
shall have no obligation hereunder in the event that a federal or state banking agency or a court of
competent jurisdiction shall determine by final, non-appealable written order that indemnification
of an Indemnified Party in the manner contemplated hereby is prohibited by applicable laws and
regulations.
(c) PPBI (and the Surviving Corporation) shall maintain Plaza’s existing
directors’ and officers’ liability insurance policy (or provide a policy providing comparable
coverage and amounts on terms no less favorable to the persons currently covered by Plaza’s
existing policy, including PPBI’s existing policy if it meets the foregoing standard) covering
persons who are currently covered by such insurance for a period of six (6) years after the Effective
Time; provided, however, that in no event shall PPBI be obligated to expend, in order to maintain
or provide insurance coverage pursuant to this Section 6.10(c), an amount in excess of 250% of
the annual premiums paid by Plaza as of the date hereof for such insurance (“Maximum Insurance
Amount”); provided further, that if the amount of the annual premiums necessary to maintain or
procure such insurance coverage exceeds the Maximum Insurance Amount, PPBI shall obtain the
most advantageous coverage obtainable for an annual premium equal to the Maximum Insurance
Amount. PPBI shall provide proof of such coverage to Plaza no later than five (5) Business Days
prior to the Effective Time.
#52027286_v14 58
(d) The obligations of PPBI and the Surviving Corporation under this Section
6.10 shall not be terminated or modified by such parties in a manner adverse to any Indemnified
Party or any other Person entitled to the benefits of this Section 6.10, or to whom this Section 6.10
applies, without the written consent of the effected Indemnified Party or Parties and/or such other
Person, as the case may be. If PPBI or any of its successors or assigns shall consolidate with or
merge into any other entity and shall not be the continuing or surviving entity of such consolidation
or merger or shall transfer all or substantially all of its assets to any other entity, then and in each
case, proper provision shall be made so that the successors and assigns of PPBI shall assume the
obligations set forth in this Section 6.10.
(e) The provisions of this Section 6.10 are (i) intended to be for the benefit of,
and will be enforceable by, each Indemnified Party and his or her heirs and his or her
representatives, as set forth in Section 9.07 herein, and (ii) in addition to, and not in substitution
for, any other rights to indemnification or contribution that any such Person may have by contract
or otherwise.
6.11 Benefit Plans.
(a) As soon as administratively practicable after the Effective Time, PPBI shall
transition Transferred Employees of Plaza and its Subsidiaries from the Benefit Plans of Plaza and
its Subsidiaries to the corresponding PPBI Benefit Plans and take all reasonable action so that
Transferred Employees of Plaza and its Subsidiaries shall be entitled to participate in each PPBI
Benefit Plan of general applicability to the same extent as similarly-situated employees of PPBI
and its Subsidiaries (it being understood that inclusion of the Transferred Employees of Plaza and
its Subsidiaries in the PPBI Benefit Plans may occur at different times with respect to different
plans), provided that coverage shall be continued under the corresponding Benefit Plans of Plaza
and its Subsidiaries until such Transferred Employees are permitted to participate in the PPBI
Benefit Plans and provided further, however, that nothing contained herein shall require PPBI or
any of its Subsidiaries to make any grants to any former employee of Plaza and its Subsidiaries
under any discretionary equity compensation plan of PPBI. PPBI shall cause each PPBI Benefit
Plan in which employees of Plaza and its Subsidiaries are eligible to participate to recognize, for
purposes of determining eligibility to participate in, the vesting of benefits and for all other
purposes (but not for accrual of pension benefits) under the PPBI Benefit Plans, the service of such
Transferred Employees with Plaza and its Subsidiaries to the same extent as such service was
credited for such purpose by Plaza and its Subsidiaries, provided, however, that such service shall
not be recognized to the extent that such recognition would result in a duplication of benefits or to
the extent not otherwise permissible under the terms of a PPBI Benefit Plan. Nothing herein shall
limit the ability of PPBI to amend or terminate any of the PPBI Benefit Plans or the Plaza Benefit
Plans in accordance with their terms at any time.
(b) At and following the Effective Time, PPBI shall honor, and the Surviving
Corporation shall continue to be obligated to perform, in accordance with their terms, all benefit
obligations to, and contractual rights of, current and former employees of Plaza and its Subsidiaries
and current and former directors of Plaza and its Subsidiaries existing as of the Effective Date, as
well as all bonus, deferred compensation, supplemental retirement plan, salary continuation,
severance, termination, change in control and other existing plans and policies of Plaza and its
#52027286_v14 59
Subsidiaries to the extent that each of the foregoing (including amounts accrued or otherwise
payable pursuant thereto) are expressly set forth in Section 6.11(b) of Plaza’s Disclosure Schedule.
(c) In the event PPBI transitions Transferred Employees of Plaza and its
Subsidiaries from the group medical, dental, health, life or disability plan of Plaza and its
Subsidiaries to the corresponding PPBI Benefit Plan at any time prior to the end of the applicable
plan year of the group medical, dental, health, life or disability plan of Plaza and its Subsidiaries,
at such time as Transferred Employees of Plaza and its Subsidiaries become eligible to participate
in a medical, dental, health, life or disability plan of PPBI or its Subsidiaries, PPBI shall cause
each such plan to (i) waive any preexisting condition limitations to the extent such conditions are
covered under the applicable medical, health or dental plans of PPBI, (ii) provide full credit under
medical, health and dental plans for any deductibles, co-payment and out-of-pocket expenses
incurred by the Transferred Employees and their beneficiaries during the portion of the calendar
year prior to such participation and (iii) waive any waiting period limitation or evidence of
insurability requirement which would otherwise be applicable to such employee on or after the
Effective Time to the extent such employee had satisfied any similar limitation or requirement
under a corresponding Plaza Benefit Plan prior to the Effective Time, provided, however, that
such waiver shall not be required to the extent that such waiver would result in a duplication of
benefits or to the extent not otherwise permissible under the terms of a contract insuring benefits
under the PPBI Benefit Plans.
(d) Within sixty (60) days from the date of this Agreement, PPBI shall identify
the Employees for whom PPBI agrees to continue employment following the Closing provided
they are employed by, and in good standing with, Plaza immediately prior to the Closing (the
“Transferred Employees”). On or before the Closing Date, Plaza shall terminate the employment
of those Employees who are not Transferred Employees and shall pay any severance, retention,
change in control, accrued and unused paid time off, amounts payable pursuant to Section 3.08(a)
hereof, or other similar payments, in each case, which have been Previously Disclosed by Plaza to
PPBI, obtain an executed general release of claims that has not been revoked, and pay to the proper
taxing authorities any income and employment Tax withholding as well as the employer portions
of any applicable employment Taxes. PPBI shall remain responsible for payment to any
Transferred Employee of any severance or similar compensation and benefits payable following a
termination of employment. Those employees of Plaza and its Subsidiaries who do not continue
their employment with PPBI or its Subsidiaries following the Effective Time, who are not a party
to an employment agreement or otherwise entitled to an existing severance package and who sign
and deliver a termination and release agreement (which will be negotiated between PPBI and
Plaza) within 30 days of the Effective Time, shall be entitled to receive a single lump sum payment
of severance in an amount and in accordance with the terms of the Plaza severance policy which
has been set forth in Section 6.11 of Plaza’s Disclosure Schedule, up to a maximum of 12 weeks
of salary. For purposes of the foregoing, any severance benefits payable in accordance with the
immediately preceding sentence pursuant to timely delivered termination and release agreements
shall be paid on the later to occur of (i) the PPBI payroll date for the PPBI payroll period during
which the former employee delivers to the Surviving Corporation his or her executed termination
and release agreement, or (ii) the PPBI payroll date for the PPBI payroll period during which the
former employee’s termination and release agreement becomes effective following the expiration
of any revocation period afforded under applicable law. If Plaza or any of its Subsidiaries has any
other severance pay plan or arrangement, then any amounts paid pursuant to that plan or
#52027286_v14 60
arrangement shall reduce the amount that the employee will receive under this Section 6.11(d) and
in no event shall there be any duplication of severance pay. Nothing contained in this Section
6.11(d) hereof shall be construed or interpreted to limit or modify in any way PPBI’s or its
Subsidiaries at will employment policy or provide any third party beneficiary rights to employees
of Plaza or any of its Subsidiaries. In no event shall severance pay be taken into account in
determining the amount of any other benefit (including but not limited to, an individual’s benefit
under any retirement plan or policy).
(e) Prior to the Closing, Plaza and its Subsidiaries shall have paid into the Plaza
Bank 401(k) Plan (the “Plaza Retirement Plan”) all employer contributions, including any
employer matching contributions, profit sharing contributions or other non-elective contributions.
Prior to the Closing, Plaza shall (i) adopt written resolutions (or take such other necessary or
appropriate action), in form and substance reasonably acceptable to PPBI, to terminate the Plaza
Retirement Plan in compliance with its terms and requirements of applicable law, effective no later
than the Business Day preceding the Closing Date and (ii) provide for full vesting of all non-
elective contributions under the Plaza Retirement Plan for all participants who currently maintain
an account under the Plaza Retirement Plan, such termination and vesting to be effective no later
than the Business Day preceding the Closing Date. Plaza shall provide PPBI with evidence of the
termination of the Plaza Retirement Plan.
(f) Each of Plaza and PPBI acknowledges and agrees that all provisions
contained within this Section 6.11 with respect to Employees are included for the sole benefit of
Plaza and nothing contained in this Section 6.11 shall confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Section 6.11. Nothing contained
herein (i) shall be construed to establish, amend or modify any benefit plan, program or
arrangement or (ii) alter or limit the ability of PPBI to amend, modify or terminate any benefit
plan, program or arrangement at any time established, sponsored or maintained by PPBI or any of
its Subsidiaries. Each of Plaza and PPBI agrees that the terms of this Section 6.11 do not and shall
not create any right in any Person to continued employment with Plaza, PPBI or any of their
respective Subsidiaries or to any compensation or benefit.
6.12 Investor Rights Agreement. PPBI and ▇▇▇▇▇▇▇▇▇ shall enter into an Investor Rights
Agreement which shall address, among other things, (i) ▇▇▇▇▇▇▇▇▇’▇ right to designate one member
to serve on the PPBI Board and the Pacific Premier Board and to continue to serve in such capacity,
subject to ▇▇▇▇▇▇▇▇▇ satisfying certain conditions, and (ii) PPBI’s agreement to file a registration
statement to enable the funds managed by ▇▇▇▇▇▇▇▇▇ to sell their shares of PPBI Common Stock
acquired in connection with the Merger and (iii) ▇▇▇▇▇▇▇▇▇’▇ agreement not to solicit the customers
or employees of Plaza.
6.13 Notification of Certain Matters. Each of Plaza and PPBI shall give prompt written
notice to the other of any fact, event or circumstance known to it that (a) is reasonably likely,
individually or taken together with all other facts, events and circumstances known to it, to result
in any Material Adverse Effect with respect to it or (b) would cause or constitute a failure of any
of the conditions provided for in Article VII.
6.14 Estoppel Letters. Plaza shall use its commercially reasonable efforts to obtain and
deliver to PPBI at the Closing with respect to the real estate (i) owned or leased by Plaza or a Plaza
#52027286_v14 61
Subsidiary, an estoppel letter dated as of the Closing in substantially the form of Annex F from all
tenants and (ii) leased by Plaza or a Plaza Subsidiary, an estoppel letter dated as of the Closing in
substantially the form of Annex G from its lessor.
6.15 Assumption of Subordinated Notes Obligations. As of the Effective Time, PPBI
shall have assumed or caused one of its Subsidiaries to assume Plaza’s Subordinated Notes
obligations. In connection therewith, PPBI and Plaza shall execute and deliver any supplemental
documents reasonably required pursuant to the term of the Subordinated Notes to make such
assumptions effective.
6.16 Antitakeover Statutes. Each of PPBI and Plaza and their respective Boards of
Directors shall, if any state antitakeover statute or similar statute becomes applicable to this
Agreement and the Transaction, take all action reasonably necessary to ensure that the Transaction
may be consummated as promptly as practicable on the terms contemplated hereby and otherwise
to minimize the effect of such statute or regulation on this Agreement and the Transaction.
6.17 Consents. Plaza shall, and shall cause its Subsidiaries to, use their commercially
reasonable best efforts to obtain all consents, approvals, waivers, non-objections and to deliver
any notices required pursuant to the terms of the Material Contracts as a result of the Transaction.
6.18 Exemption from Liability Under Section 16(b). Prior to the Effective Time, each
of PPBI and Plaza shall take all steps as may be necessary or appropriate to cause any disposition
of shares of Plaza Common Stock or conversion of any derivative securities in respect of such
shares of Plaza Common Stock in connection with the consummation of the transactions
contemplated by this Agreement to be exempt under Rule 16b-3 promulgated under the Exchange
Act.
6.19 Consent Decree. PPBI and Plaza shall cooperate and use their commercially
reasonable efforts to receive written confirmation from the DOJ prior to the Effective Date that the
Consent Decree will terminate at the Effective Time. Each of PPBI and Plaza shall have the right
to review in advance all information submitted to the DOJ in connection with the Consent Decree
or the termination thereof, and each shall consult with the other with respect to its efforts to receive
such confirmation. In exercising the foregoing right, each of such parties agrees to act reasonably
and as promptly as practicable.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.01 Conditions to Each Party’s Obligation to Effect the Merger. The respective
obligation of each of the parties hereto to consummate the Merger is subject to the fulfillment or,
to the extent permitted by applicable law, written waiver by the parties hereto prior to the Closing
of each of the following conditions:
(a) Plaza Shareholder Consents. Each of PPBI and Plaza shall have received
duly executed copies of the Plaza Shareholder Consents sufficient to constitute Shareholder
Approval.
#52027286_v14 62
(b) Regulatory Approvals. All regulatory approvals required to consummate
the Merger shall have been obtained and shall remain in full force and effect and all statutory
waiting periods in respect thereof shall have expired and no such approvals shall contain any
conditions, restrictions or requirements (other than conditions or requirements related to remedial
actions) which the PPBI Board reasonably determines in good faith would, individually or in the
aggregate, materially reduce the economic benefits of the Transaction to such a degree that PPBI,
in its reasonable discretion, would not have entered into this Agreement had such conditions,
restrictions or requirements been known at the date hereof.
(c) No Injunction. No Governmental Authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment,
decree, injunction or other order which is in effect and prohibits consummation of the Transaction.
(d) Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that purpose shall have been
initiated by the SEC and not withdrawn.
(e) Listing. The shares of PPBI Common Stock to be issued to the Plaza
shareholders (i) as the Merger Consideration in the Merger and (ii) to convert the Plaza Restricted
Stock to PPBI Common Stock, shall have been approved for listing on the Nasdaq.
(f) Tax Opinion. Each of PPBI and Plaza shall have received the written
opinion of Holland & Knight LLP, in form and substance reasonably satisfactory to both Plaza
and PPBI, dated as of the Effective Date, substantially to the effect that, on the basis of the facts,
representations and assumptions set forth in such opinion which are consistent with the state of
facts existing at the Effective Time, the Merger will be treated for federal income tax purposes as
a reorganization within the meaning of Section 368(a) of the Code. In rendering any such opinion,
such counsel may require and rely upon representations and covenants, including those contained
in certificates of officers of PPBI, Plaza and others, reasonably satisfactory in form and substance
to such counsel and Plaza’s counsel.
7.02 Conditions to Obligation of Plaza. The obligation of Plaza to consummate the
Merger is also subject to the fulfillment or written waiver by Plaza prior to the Closing of each of
the following conditions:
(a) Representations and Warranties. The representations and warranties of
PPBI set forth in this Agreement, subject in all cases to the standard set forth in Section 5.02, shall
be true and correct as of the date hereof and as of the Effective Date as though made on and as of
the Effective Date (except that representations and warranties that by their terms speak as of the
date hereof or some other date shall be true and correct as of such date), and Plaza shall have
received a certificate, dated the Effective Date, signed on behalf of PPBI by the Chief Executive
Officer and the Chief Financial Officer of PPBI to such effect.
(b) Performance of Obligations of PPBI. PPBI shall have performed in all
material respects all obligations required to be performed by it under this Agreement at or prior to
the Effective Time, and Plaza shall have received a certificate, dated the Effective Date, signed on
#52027286_v14 63
behalf of PPBI by the Chief Executive Officer and the Chief Financial Officer of PPBI to such
effect.
(c) Investor Rights’ Agreement. PPBI and ▇▇▇▇▇▇▇▇▇ shall have entered into
the Investor Rights Agreement in the form of Annex E hereto.
(d) Other Actions. PPBI shall have furnished Plaza with such certificates of its
respective officers or others and such other documents to evidence fulfillment of the conditions
set forth in Sections 7.01 and 7.02 as Plaza may reasonably request.
7.03 Conditions to Obligation of PPBI. The obligation of PPBI to consummate the
Merger is also subject to the fulfillment or written waiver by PPBI prior to the Closing of each of
the following conditions:
(a) Representations and Warranties. The representations and warranties of
Plaza set forth in this Agreement, subject in all cases to the standard set forth in Section 5.02, shall
be true and correct as of the date hereof and as of the Effective Date as though made on and as of
the Effective Date (except that representations and warranties that by their terms speak as of the
date hereof or some other date shall be true and correct as of such date), and PPBI shall have
received a certificate, dated the Effective Date, signed on behalf of Plaza by the Chief Executive
Officer and the Chief Financial Officer of Plaza to such effect.
(b) Performance of Obligations of Plaza. Plaza shall have performed in all
material respects all obligations required to be performed by it under this Agreement at or prior to
the Effective Time, and PPBI shall have received a certificate, dated the Effective Date, signed on
behalf of Plaza by the Chief Executive Officer and the Chief Financial Officer of Plaza to such
effect.
(c) Dissenting Shares. Dissenting Shares shall not represent 10% or more of
the outstanding shares of Plaza Common Stock.
(d) Minimum Non-Maturity Deposits. As of the month-end prior to the Closing
Date, Plaza Bank shall have an aggregate outstanding balance of non-maturity deposits equal to at
least $700.0 million.
(e) Minimum Tangible Common Equity. As of the Closing Date, Plaza shall
have Tangible Common Equity equal to at least $120.0 million.
(f) Bank Merger. All regulatory approvals required to consummate the Bank
Merger, including, without limitation, the approval of the DBO and FRB, shall have been obtained
and shall remain in full force and effect and all statutory waiting periods in respect thereof shall
have expired or been terminated. No order, injunction or decree issued by any Governmental
Authority of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Bank Merger shall be in effect. No statute, rule, regulation, order, injunction
or decree shall have been enacted, entered, promulgated or enforced by any Governmental
Authority which prohibits or makes illegal the consummation of the Bank Merger.
#▇▇▇▇▇▇▇▇_v14 64
(g) Officers’ Certificate. PPBI shall have received a copy of a certification,
dated the Effective Date, signed on behalf of Plaza by the Chief Executive Officer and the Chief
Financial Officer of Plaza and directed to the DOJ, to the effect that Plaza Bank has not provided
bank accounts or banking services to any Third-Party Payment Processor for at least three years
prior to the Effective Date, and to the extent Plaza Bank or any predecessor banks acquired any
other bank that provided bank accounts or banking services to any Third-Party Payment Processor
within such three-year period, Plaza Bank or any predecessor banks stopped providing bank
accounts and banking services to any such Third-Party Payment Processors in accordance with
Section XIV.A.1 or Section XIV.A.2.a of the Consent Decree.
(h) Other Actions. Plaza shall have furnished PPBI with such certificates of its
officers or others and such other documents to evidence fulfillment of the conditions set forth in
Sections 7.01 and 7.03 as PPBI may reasonably request.
ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may be terminated, and the Transaction may be
abandoned, at any time prior to the Effective Time:
(a) Mutual Consent. By the mutual consent in writing of PPBI and Plaza.
(b) Breach. Provided that the terminating party is not then in material breach
of any representation, warranty, covenant or agreement contained herein, by PPBI or Plaza in the
event of a breach by the other party of any representation, warranty, covenant or agreement
contained herein, which breach (i) cannot be or has not been cured within 30 days after the giving
of written notice to the breaching party of such breach and (ii) would entitle the non-breaching
party not to consummate the Transaction contemplated hereby under Section 7.02(a) or (b) or
7.03(a) or (b), as the case may be.
(c) Delay. By PPBI or Plaza in the event the Merger is not consummated by
May 31, 2018, except to the extent that the failure of the Merger to be consummated by such date
shall be due to the failure of the party seeking to terminate pursuant to this Section 8.01(c) to
perform or observe the covenants and agreements of such party set forth in this Agreement or the
failure of any of the Shareholders (if Plaza is the party seeking to terminate) to perform or observe
their respective covenants and agreements under the relevant Shareholder Agreement.
(d) No Regulatory Approval. By PPBI or Plaza in the event the approval of
any Governmental Authority required for consummation of the Merger and the other transactions
contemplated by this Agreement shall have been denied by final non-appealable action of such
Governmental Authority, or any Governmental Authority shall have issued a final, non-appealable
injunction permanently enjoining or otherwise prohibiting the consummation of the Merger and
the other transactions contemplated by this Agreement, or an application therefor shall have been
permanently withdrawn at the formal or informal request of a Governmental Authority, provided,
however, that no party shall have the right to terminate this Agreement pursuant to this Section
#52027286_v14 65
8.01(d) if such denial shall be due to the failure of the party seeking to terminate this Agreement
to perform or observe the covenants of such party set forth herein.
(e) Adverse Change Notice or Adverse Recommendation Change. Prior to
receipt of the Shareholder Approval, by PPBI, in the event Plaza has delivered an Adverse Change
Notice or an Adverse Recommendation Change has occurred;
(f) Superior Proposal. Prior to receipt of the Shareholder Approval, by Plaza
in accordance with Section 6.07 if (i) the Plaza Board authorizes Plaza to enter into a binding
written agreement with respect to such Superior Proposal and (ii) Plaza pays to PPBI the
Termination Fee, in each case, substantially concurrent with the termination of this Agreement; or
(g) No Shareholder Approval. By PPBI, if Plaza Shareholder Consents
representing greater than a majority of the outstanding Plaza Common Stock shall not have been
delivered to PPBI prior to 6:00 p.m., Pacific Time, on the third Business Day immediately
following the date of the declaration of effectiveness by the SEC of the Registration Statement.
8.02 Effect of Termination and Abandonment.
(a) In the event of termination of this Agreement and the abandonment of the
Merger pursuant to this Article VIII, no party to this Agreement shall have any liability or further
obligation to any other party hereunder except that (i) this Section 8.02, Section 6.06(c) and Article
IX shall survive any termination of this Agreement and (ii) notwithstanding anything to the
contrary, neither PPBI nor Plaza shall be relieved or released from any liabilities or damages
arising out of its fraud or willful breach of any provision of this Agreement.
(b) In the event that (i) an Acquisition Proposal has been made (whether or not
conditional and whether or not withdrawn) to Plaza or its shareholders or any Person has publicly
announced an intention (whether or not conditional and whether or not withdrawn) to make an
Acquisition Proposal or an Acquisition Proposal (whether or not conditional and whether or not
withdrawn) otherwise becomes known to Plaza or the executive officers of Plaza and thereafter
(A) this Agreement is terminated by PPBI pursuant to 8.01(b) or PPBI pursuant to 8.01(g) and (B)
prior to the date that is 12 months after such termination, (1) Plaza or any of its Subsidiaries enters
into an Acquisition Agreement with respect to any Acquisition Proposal or (2) any Acquisition
Proposal is consummated (solely for purposes of this Section 8.02(b)(i)(B), the term “Acquisition
Proposal” shall have the meaning set forth in the definition of Acquisition Proposal contained in
Section 6.07(a) except that all references to 10% shall be deemed references to 50%), then Plaza
shall pay to PPBI a fee equal to $8.0 million (the “Termination Fee”) by wire transfer of next day
funds on the earlier of the date of execution of such Acquisition Agreement or the consummation
of such Acquisition Proposal. In the event that (i) this Agreement is terminated by PPBI pursuant
to Section 8.01(e) or (ii) this Agreement is terminated by Plaza pursuant to Section 8.01(f), then,
in each such case, Plaza shall pay PPBI the Termination Fee by wire transfer of same-day funds
(x) in the case of a termination by PPBI pursuant to Section 8.01(e), within two Business Days
after such termination, and (y) in the case of a termination by Plaza pursuant to Section 8.01(f), no
later than the time of such termination.
#52027286_v14 66
(c) In the event a Termination Fee is payable to PPBI pursuant to Section
8.02(b) or the Agreement is terminated by PPBI pursuant to Section 8.01(g), then Plaza shall pay
PPBI or its designees by wire transfer of same day funds, as promptly as possible (but in any event
within two Business Days) following the delivery by PPBI of an invoice therefor, all reasonably
documented out-of-pocket fees and expenses incurred by PPBI and its Affiliates in connection
with the transactions contemplated by this Agreement; provided that Plaza shall not be required to
pay more than an aggregate of $1.5 million in fees and expenses pursuant to this Section 8.02(c).
(d) Plaza acknowledges that the agreements contained in this Section 8.02 are
an integral part of the transactions contemplated by this Agreement and that, without these
agreements, PPBI would not have entered into this Agreement. Accordingly, if Plaza fails
promptly to pay the amounts due pursuant to Section 8.02 and, in order to obtain such payment,
PPBI commences a suit that results in a judgement against Plaza for the amounts set forth in
Section 8.02, Plaza shall pay to PPBI its reasonable costs and expenses (including attorneys’ fees
and expenses) in connection with such suit and any appeal relating thereto, together with interest
on the amounts set forth in Section 8.02 at the prime lending rate as published in the Wall Street
Journal in effect on the date such payment was required to be made.
ARTICLE IX
MISCELLANEOUS
9.01 Survival. No representations, warranties, agreements and covenants contained in
this Agreement shall survive the Effective Time (other than agreements or covenants contained
herein that by their express terms are to be performed after the Effective Time) or the termination
of this Agreement if this Agreement is terminated prior to the Effective Time (other than Sections
6.06(e), 8.02 and this Article IX, which shall survive any such termination). Notwithstanding
anything in the foregoing to the contrary, no representations, warranties, agreements and covenants
contained in this Agreement shall be deemed to be terminated or extinguished so as to deprive a
party hereto or any of its affiliates of any defense at law or in equity which otherwise would be
available against the claims of any Person, including without limitation any shareholder or former
shareholder.
9.02 Waiver; Amendment. Prior to the Effective Time, any provision of this Agreement
may be (i) waived, by the party benefited by the provision or (ii) amended or modified at any time,
by an agreement in writing among the parties hereto executed in the same manner as this
Agreement, except that after the receipt of Shareholder Approval, no amendment shall be made
which by law requires further approval by the shareholders of Plaza without obtaining such
approval. For purposes of clarification, an amendment of any date in Section 8.01(c) shall not
require further approval by any shareholders and if such amendment were deemed by law to
require further approval by the shareholders of Plaza, the receipt of the Shareholder Approval will
be deemed to have granted Plaza the authority to amend such dates without such further approval.
9.03 Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be deemed to constitute one and the same original agreement.
#52027286_v14 67
9.04 Governing Law. This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware applicable to contracts made and to be
performed entirely within such State.
9.05 Expenses. Each party hereto will bear all expenses incurred by it in connection
with this Agreement and the transactions contemplated hereby, including fees and expenses of its
own financial consultants, accountants and counsel; provided that nothing contained herein shall
limit either party’s rights to recover any liabilities or damages arising out of the other party’s fraud
or willful breach of any provision of this Agreement.
9.06 Notices. All notices, requests and other communications hereunder to a party shall
be in writing and shall be deemed given if personally delivered, telecopied (with confirmation) or
mailed by registered or certified mail (return receipt requested) or delivered by an overnight courier
(with confirmation) to such party at its address set forth below or such other address as such party
may specify by notice to the parties hereto.
If to Plaza to:
Plaza Bancorp
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Hampton LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to PPBI to:
Pacific Premier Bancorp, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
#52027286_v14 68
With a copy to:
Holland & Knight LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9.07 Entire Understanding; Limited Third Party Beneficiaries. This Agreement, the
Bank Merger Agreement, the Support Agreement, the Shareholder Agreements, the Investor
Rights Agreement and the Confidentiality Agreement represent the entire understanding of the
parties hereto and thereto with reference to the Transaction, and this Agreement, the Bank Merger
Agreement, the Support Agreement, the Shareholder Agreements, the Investor Rights Agreement
and the Confidentiality Agreement supersede any and all other oral or written agreements
heretofore made. Except for the Indemnified Parties’ right to enforce PPBI’s obligation under
Section 6.10, which are expressly intended to be for the irrevocable benefit of, and shall be
enforceable by, each Indemnified Party and his or her heirs and representatives, nothing in this
Agreement, expressed or implied, is intended to confer upon any Person, other than the parties
hereto or their respective successors, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
9.08 Severability. Except to the extent that application of this Section 9.08 would have
a Material Adverse Effect on Plaza or PPBI, any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement
is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable. In all such cases, the parties shall use their reasonable best efforts to substitute a
valid, legal and enforceable provision which, insofar as practicable, implements the original
purposes and intents of this Agreement.
9.09 Enforcement of the Agreement. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Except as provided in Section
8.02(b), it is accordingly agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity. In the event attorneys’ fees or other costs
are incurred to secure performance of any of the obligations herein provided for, or to establish
damages for the breach thereof, or to obtain any other appropriate relief, whether by way of
prosecution or defense, the prevailing party shall be entitled to recover reasonable attorneys’ fees
and costs incurred therein.
#52027286_v14 69
9.10 Interpretation. When a reference is made in this Agreement to Sections, Exhibits
or Schedules, such reference shall be to a Section of, or Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the
words “without limitation.” Whenever the words “as of the date hereof” are used in this
Agreement, they shall be deemed to mean the day and year first above written.
9.11 Assignment. No party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the other parties. Subject
to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
9.12 Alternative Structure. Notwithstanding any provision of this Agreement to the
contrary, PPBI may at any time modify the structure of the acquisition of Plaza set forth herein,
provided that (i) the Merger Consideration to be paid to the holders of Plaza Common Stock is not
thereby changed in kind or reduced in amount as a result of such modification, (ii) such
modifications will not adversely affect the tax treatment to Plaza’s shareholders as a result of
receiving the Merger Consideration and (iii) such modification will not jeopardize receipt of any
required approvals of Governmental Authorities or delay consummation of the Transactions
contemplated by this Agreement.
[Signature Page to Follow]
#52027286_v14 70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
counterparts by their duly authorized officers, all as of the day and year first above written.
PACIFIC PREMIER BANCORP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Gardner____________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ Nicolas______________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Executive Vice President and
Chief Financial Officer
PLAZA BANCORP
By: /s/ ▇▇▇▇▇ ▇. Galloway___________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇ Shindler_______________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
#52027286_v14
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ANNEX A
SUPPORT AGREEMENT
SUPPORT AGREEMENT (this “Agreement”), dated as of August 8, 2017, between
▇▇▇▇▇▇▇▇▇ Fund Manager GP, LLC (the “Manager”) and Pacific Premier Bancorp, Inc., a Delaware
corporation (“PPBI”). All terms used herein and not defined herein shall have the meanings
assigned thereto in the Merger Agreement (defined below).
WHEREAS, Plaza Bancorp, a Delaware corporation (“Plaza”), and PPBI are entering into
an Agreement and Plan of Reorganization, dated as of the date hereof (the “Merger Agreement”),
pursuant to which Plaza will merge with and into PPBI on the terms and conditions set forth therein
(the “Merger”) and, in connection therewith, outstanding shares of Plaza Common Stock will be
converted into shares of PPBI Common Stock in the manner set forth therein; and
WHEREAS, the Manager is the general partner of ▇▇▇▇▇▇▇▇▇ Community BancFund, L.P.,
▇▇▇▇▇▇▇▇▇ Community BancFund-A, L.P. and ▇▇▇▇▇▇▇▇▇ Community BancFund-CA, L.P.
(collectively, the “Investors”), which own the shares of Plaza Common Stock identified on Exhibit
I hereto (such shares, together with all shares of Plaza Common Stock subsequently acquired by
the Investors during the term of this Agreement, being referred to as the “Shares”); and
WHEREAS, in order to induce PPBI to enter into the Merger Agreement, the Manager
has agreed to enter into and perform this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Agreement to Vote Shares. The Manager agrees that while this Agreement is in
effect, at such time as Plaza conducts the Plaza Consent Solicitation, the Manager shall deliver, on
behalf of the Investors, a duly executed copy of the written consent set forth as Exhibit II to this
Agreement (or cause such consent to be delivered) covering all the Shares (whether acquired
heretofore or hereafter) that are beneficially owned by the Investors or as to which the Manager or
the Investors have, directly or indirectly, the right to vote or direct the voting.
2. Transfer of Shares.
(a) Prohibition on Transfers of Shares; Other Actions. The Manager hereby
agrees, for itself and on behalf of the Investors, that while this Agreement is in effect, the
Manager shall not, without the prior written approval of PPBI, (i) sell, transfer, pledge,
encumber, distribute by gift or donation, or otherwise dispose of any of the Shares (or any
securities convertible into or exercisable or exchangeable for Shares) or any interest
therein, whether by actual disposition, physical settlement or effective economic
disposition through hedging transactions, derivative instruments or other means, except for
charitable gifts or donations where the recipient enters into a voting agreement binding the
recipient to vote its shares in the manner provided in Section 1 of this Agreement, (ii) enter
into any agreement, arrangement or understanding with any Person, or take any other
action, that violates or conflicts with or could reasonably be expected to violate or conflict
with the Manager’s representations, warranties, covenants and obligations under this
#52027286_v14
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Agreement, or (iii) take any other action that could reasonably be expected to impair or
otherwise adversely affect, in any material respect, the Manager’s power, authority and
ability to comply with and perform its covenants and obligations under this Agreement;
provided, however, that the prohibitions provided for in this Section 2 shall no longer apply
to the Manager or the Investors once Shareholder Approval is obtained by delivery to Plaza
and PPBI of the Plaza Shareholder Consents.
(b) Transfer of Voting Rights. The Manager hereby agrees, for itself and on
behalf of the Investors, that the Manager shall not deposit any Shares in a voting trust, grant
any proxy or enter into any voting agreement or similar agreement or arrangement with
respect to any of the Shares.
3. Representations and Warranties of the Manager. The Manager represents and
warrants to and agrees with PPBI as follows:
(a) Capacity. The Manager has all requisite capacity and authority to enter into
and perform its obligations under this Agreement.
(b) Binding Agreement. This Agreement has been duly executed and delivered
by the Manager and constitutes the valid and legally binding obligation of the Manager,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(c) Non-Contravention. The execution and delivery of this Agreement by the
Manager does not, and the performance by the Manager of its obligations hereunder and
the consummation by the Manager of the transactions contemplated hereby will not, violate
or conflict with, or constitute a default under, any agreement, instrument, contract or other
obligation or any order, arbitration award, judgment or decree to which the Manager or the
Investors are a party or by which the Manager or the Investors are bound, or any statute,
rule or regulation to which the Manager or the Investors are subject or any charter, bylaw
or other organizational document of the Manager or the Investors.
(d) Ownership. The Shares are, and, except as otherwise provided for in
Section 2(a) hereof, through the term of this Agreement will be, owned beneficially and of
record solely by the Manager and the Investors, except as otherwise disclosed on Exhibit I
hereto. The Investors have title to the Shares, free and clear of any lien, pledge, mortgage,
security interest or other encumbrance, except as otherwise disclosed on Exhibit I hereto.
As of the date hereof, the Shares identified on Exhibit I hereto constitute all of the shares
of Plaza Common Stock owned beneficially or of record by the Investors. The Manager
has and, except as otherwise provided for in Section 2(a) above, will have at all times
during the term of this Agreement (i) sole voting power and sole power to issue instructions
with respect to the matters set forth in Section 1 hereof, (ii) sole power of disposition and
(iii) sole power to agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares owned by the Investors on the date of this Agreement and all of
the Shares hereafter acquired by the Investors and owned beneficially or of record by them
during the term of this Agreement. For purposes of this Agreement, the term “beneficial
#52027286_v14
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ownership” shall be interpreted in accordance with Rule 13d-3 under the Exchange Act,
provided that a Person shall be deemed to beneficially own any securities which may be
acquired by such Person pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable immediately or
only after the passage of time, including the passage of time within 60 days, the satisfaction
of any conditions, the occurrence of any event or any combination of the foregoing).
(e) Consents and Approvals. The execution and delivery of this Agreement by
the Manager does not, and the performance by the Manager of its obligations under this
Agreement and the consummation by it of the transactions contemplated hereby will not,
require the Manager to obtain any consent, approval, authorization or permit of, or to make
any filing with or notification to, any Governmental Authority.
(f) Absence of Litigation. There is no suit, action, investigation or proceeding
pending or, to the knowledge of the Manager, threatened against or affecting the Manager
or the Investors or any of their affiliates before or by any Governmental Authority that
could reasonably be expected to materially impair the ability of the Manager to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a timely
basis.
4. No Solicitation. The Manager hereby agrees that during the term of this Agreement
it shall not, and shall not permit any investment banker, financial advisor, attorney, accountant or
other representative retained by it to, directly or indirectly, (a) take any of the actions specified in
clauses (i)-(vi) of Section 6.07(a) of the Merger Agreement, (b) agree to release, or release, any
Person from any obligation under any existing standstill agreement or arrangement relating to
Plaza, or (c) participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are
used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or
influence any Person with respect to the voting of, any shares of Plaza Common Stock in
connection with any vote or other action on any matter of a type described in Section 1, other than
to recommend that shareholders of Plaza deliver written consents in favor of the adoption and
approval of the Merger Agreement and the Merger and as otherwise expressly permitted by this
Agreement. The Manager agrees immediately to cease and cause to be terminated any activities,
discussions or negotiations conducted before the date of this Agreement with any Persons other
than PPBI with respect to any possible Acquisition Proposal and will take all necessary steps to
inform any investment banker, financial advisor, attorney, accountant or other representative
retained by it of the obligations undertaken by the Manager pursuant to this Section 4.
5. Notice of Acquisitions; Proposals Regarding Prohibited Transactions. The
Manager hereby agrees to notify PPBI promptly (and in any event within two (2) Business Days)
in writing of the number of any additional shares of Plaza Common Stock or other securities of
Plaza of which the Manager or the Investors acquire beneficial or record ownership on or after the
date hereof. The Manager will comply with the provisions of Section 6.07(c) of the Merger
Agreement as if it were Plaza.
6. Specific Performance and Remedies. The Manager acknowledges that it will be
impossible to measure in money the damage to PPBI if it fails to comply with the obligations
#52027286_v14
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imposed by this Agreement and that, in the event of any such failure, PPBI will not have an
adequate remedy at law. Accordingly, the Manager agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or in damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that PPBI may have an adequate remedy
at law. The Manager agrees that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with PPBI’s seeking or obtaining such equitable relief.
7. Term of Agreement; Termination.
(a) The term of this Agreement shall commence on the date hereof.
(b) This Agreement shall terminate upon the earlier to occur of (i) the date, if
any, of termination of the Merger Agreement in accordance with its terms, or (ii) the
Effective Time of the Merger. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided, however, such termination shall not relieve
any party from liability for any willful breach of this Agreement prior to such termination.
8. Stop Transfer Order. In furtherance of this Agreement, the Manager hereby
authorizes and instructs Plaza to enter a stop transfer order with respect to all of the Shares for the
period from the date hereof through the date this Agreement is terminated in accordance with
Section 7, except as otherwise provided for in Section 2(a) hereof.
9. Entire Agreement. This Agreement supersedes all prior agreements, written or oral,
among the parties hereto with respect to the subject matter hereof and contains the entire agreement
among the parties with respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by each party hereto. No waiver of any provisions hereof by any party
shall be deemed a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
10. Notices. All notices, requests, claims, demands or other communications hereunder
shall be in writing and shall be deemed given when delivered personally, upon receipt of a
transmission confirmation if sent by telecopy or like transmission and on the next Business Day
when sent by a reputable overnight courier service to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to PPBI to:
Pacific Premier Bancorp, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
#52027286_v14
A-5
With a copy to:
Holland & Knight LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Manager to:
▇▇▇▇▇▇▇▇▇ Fund Manager GP, LLC
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11. Miscellaneous.
(a) Severability. If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable by a court
of competent jurisdiction, such provision or application shall be unenforceable only to the
extent of such invalidity or unenforceability, and the remainder of the provision held
invalid or unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this Agreement,
shall not be affected.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(c) Headings. All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference shall be derived
therefrom.
(d) Governing Law; Waiver of Jury Trial. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without giving effect
to the principles of conflicts of law. Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to trial by jury
in connection with any litigation arising out of or relating to this Agreement or the
transactions contemplated hereby.
(e) Successors and Assigns; Third Party Beneficiaries. Neither this Agreement
nor any of the rights or obligations of any party under this Agreement shall be assigned, in
whole or in part, by any party without the prior written consent of the other parties hereto.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be
#52027286_v14
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enforceable by the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer on any Person other
than the parties hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
(f) Regulatory Compliance. Each of the provisions of this Agreement is
subject to compliance with all applicable regulatory requirements and conditions.
12. Attorney’s Fees. The prevailing party or parties in any litigation, arbitration,
mediation, bankruptcy, insolvency or other proceeding (“Proceeding”) relating to the enforcement
or interpretation of this Agreement may recover from the unsuccessful party or parties all
reasonable fees and disbursements of counsel (including expert witness and other consultants’ fees
and costs) relating to or arising out of (a) the Proceeding (whether or not the Proceeding proceeds
to judgment), and (b) any post-judgment or post-award proceeding including, without limitation,
one to enforce or collect any judgment or award resulting from the Proceeding. All such judgments
and awards shall contain a specific provision for the recovery of all such subsequently incurred
costs, expenses, and fees and disbursements of counsel.
[Signature page follows]
#52027286_v14
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PACIFIC PREMIER BANCORP, INC.
By: _____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: _____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Executive Vice President and
Chief Financial Officer
▇▇▇▇▇▇▇▇▇ FUND MANAGER GP, LLC
By: _____________________________
Name: _____________________________
Title: _____________________________
#52027286_v14
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EXHIBIT I
SUPPORT AGREEMENT
Name of Investor
Shares of
Plaza Common
Stock Beneficially Owned
▇▇▇▇▇▇▇▇▇ Community BancFund, ▇.▇.
▇▇▇▇▇▇▇▇▇ Community BancFund-A, ▇.▇.
▇▇▇▇▇▇▇▇▇ Community BancFund-CA, L.P.
#52027286_v14
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EXHIBIT II
WRITTEN CONSENT
OF CERTAIN STOCKHOLDERS OF
PLAZA BANCORP
Pursuant to Section 228 of the
General Corporation Law of the State of Delaware
Pursuant to Section 228 of the Delaware General Corporation Law (the “DGCL”) and
the Certificate of Incorporation, as amended, and the Amended and Restated Bylaws, as
amended, of Plaza Bancorp, a Delaware corporation (“Plaza”), the undersigned, the holders of
________ shares of common stock, par value $0.0001 per share, of Plaza (the “Plaza Common
Stock”), constituting approximately ___% of the voting power of the outstanding shares of the
Plaza Common Stock, do hereby irrevocably consent as follows:
Adoption of the Merger Agreement and Related Matters
WHEREAS, the Board of Directors of Plaza (the “Plaza Board”) has (i) approved and
determined advisable (A) the Agreement and Plan of Reorganization, dated as of August 8, 2017,
by and between Plaza and Pacific Premier Bancorp, Inc., a Delaware corporation (“PPBI”),
which is attached hereto as Exhibit A (the “Merger Agreement”), pursuant to which, among
other things, Plaza will be merged with and into PPBI (the “Merger”), (B) the Merger and (C)
the other transactions contemplated by the Merger Agreement, (ii) determined that it is in the
best interests of Plaza’s shareholders that Plaza enter into the Merger Agreement and
consummate the Merger and the other transactions contemplated by the Merger Agreement on
the terms and subject to the conditions set forth in the Merger Agreement, (iii) determined that
the consideration to be paid to Plaza’s shareholders in the Merger is fair to such shareholders and
(iv) recommended that Plaza’s shareholders adopt the Merger Agreement;
WHEREAS, the Merger Agreement was executed by the parties thereto on August 8,
2017;
WHEREAS, the Merger Agreement provides that each share of Plaza Common Stock
issued and outstanding immediately prior to the Effective Time (as defined in the Merger
Agreement) (other than shares in respect of which appraisal rights have been properly exercised)
shall be cancelled and shall be converted automatically into the right to receive the Merger
Consideration (as defined in the Merger Agreement);
WHEREAS, the undersigned have reviewed the Merger Agreement and such other
information as they believed necessary to make an informed decision concerning their vote on
the adoption of the Merger Agreement, and the undersigned have had the opportunity to consult
#52027286_v14
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with their own legal, tax and/or financial advisor(s) regarding the consequences to them of the
Merger, the Merger Agreement and the execution of this Written Consent;
WHEREAS, the undersigned desire to waive any rights to appraisal of the fair value of
such shareholder’s shares of Plaza Common Stock and rights to dissent from the Merger that the
undersigned may have, whether pursuant to the DGCL or otherwise; and
WHEREAS, the undersigned desire to waive certain other claims in connection with this
Written Consent, the Merger Agreement and the Merger.
NOW, THEREFORE, BE IT RESOLVED, that the Merger Agreement and the
transactions and agreements contemplated thereby, including the Merger, be, and the same
hereby are, adopted and approved in all respects.
FURTHER RESOLVED, that each of the undersigned hereby irrevocably waives any
rights to appraisal of the fair value of such shareholder’s shares of Plaza Common Stock and any
rights to dissent from the Merger that the undersigned may have, whether pursuant to the DGCL
or otherwise.
FURTHER RESOLVED, that the undersigned hereby agree (on their own behalf and on
behalf of their successors-in-interest, transferees or assignees) to forego participation as a
plaintiff or member of a plaintiff class in any action (including any class action) with respect to
any claim, direct, derivative or otherwise, based on their status as shareholders of Plaza relating
to the negotiation, execution or delivery of this Written Consent or the Merger Agreement or the
consummation of (but not the failure to consummate) the Merger and the other transactions
contemplated by the Merger Agreement, and to take all necessary steps to affirmatively waive
and release any right or claim of recovery or recovery in any settlement or judgment related to
any such action reasonably requested by PPBI in writing. For the avoidance of doubt, none of the
undersigned waive, release or discharge any claims relating to the right to receive the Merger
Consideration under the Merger Agreement.
FURTHER RESOLVED, that PPBI may rely upon the foregoing waivers and
agreements as being binding in all respects against each of the undersigned.
The undersigned hereby waives compliance with any and all notice requirements
imposed by the Certificate of Incorporation, as amended, of Plaza, Plaza’s Amended and
Restated Bylaws, as amended, the DGCL and any other applicable law. This Written Consent is
effective upon execution and may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
[The remainder of this page was intentionally left blank.]
#52027286_v14
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IN WITNESS WHEREOF, each of the undersigned has executed this written consent
on the date first set forth opposite its name below.
Dated , 201 _________________________________
#52027286_v14
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ANNEX B
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this “Agreement”), dated as of August 8, 2017,
between __________________, a shareholder (“Shareholder”) of Plaza Bancorp, a Delaware
corporation (“Plaza”), and Pacific Premier Bancorp, Inc., a Delaware corporation (“PPBI”). All
terms used herein and not defined herein shall have the meanings assigned thereto in the Merger
Agreement (defined below).
WHEREAS, Plaza and PPBI are entering into an Agreement and Plan of Reorganization,
dated as of the date hereof (the “Merger Agreement”), pursuant to which Plaza will merge with
and into PPBI on the terms and conditions set forth therein (the “Merger”) and, in connection
therewith, outstanding shares of Plaza Common Stock will be converted into shares of PPBI
Common Stock in the manner set forth therein; and
WHEREAS, Shareholder owns the shares of Plaza Common Stock identified on Exhibit I
hereto (such shares, together with all shares of Plaza Common Stock subsequently acquired by
Shareholder during the term of this Agreement, being referred to as the “Shares”); and
WHEREAS, in order to induce PPBI to enter into the Merger Agreement, Shareholder,
solely in such Shareholder’s capacity as a shareholder of Plaza and not in any other capacity, has
agreed to enter into and perform this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Agreement to Vote Shares. Shareholder agrees that while this Agreement is in
effect, at such time as Plaza conducts the Plaza Consent Solicitation, Shareholder shall deliver a
duly executed copy of the written consent set forth as Exhibit II to this Agreement (or cause such
consent to be delivered) covering all the Shares (whether acquired heretofore or hereafter) that are
beneficially owned by Shareholder or as to which Shareholder has, directly or indirectly, the right
to vote or direct the voting.
2. Transfer of Shares.
(a) Prohibition on Transfers of Shares; Other Actions. Shareholder hereby
agrees that while this Agreement is in effect, Shareholder shall not, without the prior
written approval of PPBI, (i) sell, transfer, pledge, encumber, distribute by gift or donation,
or otherwise dispose of any of the Shares (or any securities convertible into or exercisable
or exchangeable for Shares) or any interest therein, whether by actual disposition, physical
settlement or effective economic disposition through hedging transactions, derivative
instruments or other means, except for charitable gifts or donations where the recipient
enters into a voting agreement binding the recipient to vote its shares in the manner
provided in Section 1 of this Agreement, (ii) enter into any agreement, arrangement or
understanding with any Person, or take any other action, that violates or conflicts with or
could reasonably be expected to violate or conflict with Shareholder’s representations,
warranties, covenants and obligations under this Agreement, or (iii) take any other action
#52027286_v14
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that could reasonably be expected to impair or otherwise adversely affect, in any material
respect, Shareholder’s power, authority and ability to comply with and perform his, her or
its covenants and obligations under this Agreement; provided, however, that the
prohibitions provided for in this Section 2 shall no longer apply to Shareholder once
Shareholder Approval is obtained by delivery to Plaza and PPBI of the Plaza Shareholder
Consents.
(b) Transfer of Voting Rights. Shareholder hereby agrees that Shareholder
shall not deposit any Shares in a voting trust, grant any proxy or enter into any voting
agreement or similar agreement or arrangement with respect to any of the Shares.
3. Representations and Warranties of Shareholder. Shareholder represents and
warrants to and agrees with PPBI as follows:
(a) Capacity. Shareholder has all requisite capacity and authority to enter into
and perform his, her or its obligations under this Agreement.
(b) Binding Agreement. This Agreement has been duly executed and delivered
by Shareholder and constitutes the valid and legally binding obligation of Shareholder,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(c) Non-Contravention. The execution and delivery of this Agreement by
Shareholder does not, and the performance by Shareholder of his, her or its obligations
hereunder and the consummation by Shareholder of the transactions contemplated hereby
will not, violate or conflict with, or constitute a default under, any agreement, instrument,
contract or other obligation or any order, arbitration award, judgment or decree to which
Shareholder is a party or by which Shareholder is bound, or any statute, rule or regulation
to which Shareholder is subject or, in the event that Shareholder is a corporation,
partnership, trust or other entity, any charter, bylaw or other organizational document of
Shareholder.
(d) Ownership. Shareholder’s Shares are, and, except as otherwise provided
for in Section 2(a) hereof, through the term of this Agreement will be, owned beneficially
and of record solely by Shareholder, except as otherwise disclosed on Exhibit I hereto.
Shareholder has title to the Shares, free and clear of any lien, pledge, mortgage, security
interest or other encumbrance, except as otherwise disclosed on Exhibit I hereto. As of the
date hereof, the Shares identified on Exhibit I hereto constitute all of the shares of Plaza
Common Stock owned beneficially or of record by Shareholder. Shareholder has and,
except as otherwise provided for in Section 2(a) above, will have at all times during the
term of this Agreement (i) sole voting power and sole power to issue instructions with
respect to the matters set forth in Section 1 hereof, (ii) sole power of disposition and (iii)
sole power to agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares owned by Shareholder on the date of this Agreement and all of
the Shares hereafter acquired by Shareholder and owned beneficially or of record by him,
her or it during the term of this Agreement. For purposes of this Agreement, the term
#52027286_v14
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“beneficial ownership” shall be interpreted in accordance with Rule 13d-3 under the
Exchange Act, provided that a Person shall be deemed to beneficially own any securities
which may be acquired by such Person pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights, warrants or
options, or otherwise (irrespective of whether the right to acquire such securities is
exercisable immediately or only after the passage of time, including the passage of time
within 60 days, the satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing).
(e) Consents and Approvals. The execution and delivery of this Agreement by
Shareholder does not, and the performance by Shareholder of his, her or its obligations
under this Agreement and the consummation by him, her or it of the transactions
contemplated hereby will not, require Shareholder to obtain any consent, approval,
authorization or permit of, or to make any filing with or notification to, any Governmental
Authority.
(f) Absence of Litigation. There is no suit, action, investigation or proceeding
pending or, to the knowledge of Shareholder, threatened against or affecting Shareholder
or any of his, her or its affiliates before or by any Governmental Authority that could
reasonably be expected to materially impair the ability of Shareholder to perform his, her
or its obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
4. No Solicitation. Shareholder hereby agrees that during the term of this Agreement
he, she or it shall not, and shall not permit any investment banker, financial advisor, attorney,
accountant or other representative retained by him, her or it to, directly or indirectly, (a) take any
of the actions specified in clauses (i)-(vi) of Section 6.07(a) of the Merger Agreement, (b) agree
to release, or release, any Person from any obligation under any existing standstill agreement or
arrangement relating to Plaza, or (c) participate in, directly or indirectly, a “solicitation” of
“proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights
to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Plaza
Common Stock in connection with any vote or other action on any matter of a type described in
Section 1, other than to recommend that shareholders of Plaza deliver written consents in favor of
the adoption and approval of the Merger Agreement and the Merger and as otherwise expressly
permitted by this Agreement. Shareholder agrees immediately to cease and cause to be terminated
any activities, discussions or negotiations conducted before the date of this Agreement with any
Persons other than PPBI with respect to any possible Acquisition Proposal and will take all
necessary steps to inform any investment banker, financial advisor, attorney, accountant or other
representative retained by him, her or it of the obligations undertaken by Shareholder pursuant to
this Section 4. Nothing contained in this Section 4 shall prevent a Shareholder who is an officer
or a member of the Plaza Board from discharging his or her fiduciary duties solely in his or her
capacity as such an officer or director.
5. Notice of Acquisitions; Proposals Regarding Prohibited Transactions. Shareholder
hereby agrees to notify PPBI promptly (and in any event within two (2) Business Days) in writing
of the number of any additional shares of Plaza Common Stock or other securities of Plaza of
which Shareholder acquires beneficial or record ownership on or after the date hereof. Shareholder
#52027286_v14
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will comply with the provisions of Section 6.07(c) of the Merger Agreement as if he, she or it were
Plaza.
6. Non-Solicitation.
(a) Shareholder agrees that for a period of two (2) years following the Closing
Date, Shareholder will not directly or indirectly:
(i) solicit (other than general solicitations through newspapers or other
media of general circulation, or the engagement of professional search firms, not
targeted at such employees) any employees of Plaza or its Subsidiaries prior to the
Closing (“Plaza Employees”); provided, however, that the foregoing shall not apply
to any Plaza Employee (Y) who does not become an employee of PPBI or any of
its Subsidiaries or is terminated by PPBI or any of its Subsidiaries without cause
on or after the Closing Date; or (Z) whose employment terminated more than six
months prior to the time that such Plaza Employee is first solicited for employment
following the Closing Date; or
(ii) knowingly (A) induce, persuade, encourage or influence or attempt
to induce, persuade, encourage or influence any Person having a business
relationship with Plaza or its Subsidiaries and Affiliates prior to the Closing Date,
to discontinue, reduce or restrict such relationship with PPBI or its Subsidiaries
after the Closing Date, provided that nothing herein shall prevent Shareholder from
conducting or engaging in business with any Person who was not solicited in
violation of Section 6(a)(ii)(B), or (B) solicit or target the deposits, loans or other
products and services from or to Persons who were depositors, borrowers or
customers of Plaza or its Subsidiaries on the date of this Agreement, and/or as of
the Closing Date, whether by personal contact, by telephone, by facsimile, by mail
or other form of solicitation or communication, or in any other way except for
general solicitations that are directed to the general public and not directed
specifically to Persons who were depositors, borrowers or customers of Plaza or its
Subsidiaries on the date of this Agreement, or as of the Closing Date.
Notwithstanding the foregoing and for purposes of clarity, nothing herein shall
prohibit the Shareholder from exercising Shareholder’s discretion relating to
Shareholder’s personal and business banking relationships.
(b) The Shareholder acknowledges and agrees that the business conducted by
Plaza and its Subsidiaries is highly competitive and that the covenants made by the
Shareholder in this Section 6 are made as a necessary inducement for PPBI to enter into
the Merger Agreement and to consummate the transactions contemplated thereby. It is the
desire and intent of the parties to this Agreement that the provisions of this Section 6 shall
be enforced to the fullest extent permissible under the laws and public policies of each
jurisdiction in which enforcement is sought. It is expressly understood and agreed that
although the Shareholder and PPBI each consider the restrictions contained in this Section
6 to be reasonable, if a final determination is made by a court of competent jurisdiction or
an arbitrator that the time or territory or any other restriction contained in this Section 6 is
unenforceable against any party, the provisions of this Section 6 shall be deemed amended
#52027286_v14
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to apply as to such maximum time and territory and to such maximum extent as such court
may judicially determine or indicate to be enforceable.
[Notwithstanding the foregoing or anything to the contrary contained herein, the parties
hereto acknowledge and agree that the restrictions set forth in this Section 6 shall not apply to any
affiliate, representative, client or portfolio company of Shareholder.]1
(c) The Shareholder acknowledges and agrees that the provisions of this
Agreement are necessary to protect PPBI’s legitimate business interests and to protect the
value of PPBI’s acquisition of Plaza. The Shareholder warrants that these provisions will
not unreasonably interfere with his or her ability to earn a living or to pursue his or her
occupation and the Shareholder has the means to support himself or herself and his or her
dependents and the provisions of this Section 6 will not impair such ability in any manner
whatsoever.
(d) The Shareholder will not, at any time during the two-year period referred to
in Subsection 6(a) of this Agreement, disparage PPBI, its Subsidiaries or any of its
Affiliates, or the business conducted by PPBI, its Subsidiaries or any of their Affiliates, or
any stockholder, member, director, manager, officer, employee or agent of PPBI, its
Subsidiaries or any of their Affiliates.
7. Specific Performance and Remedies. Shareholder acknowledges that it will be
impossible to measure in money the damage to PPBI if Shareholder fails to comply with the
obligations imposed by this Agreement and that, in the event of any such failure, PPBI will not
have an adequate remedy at law. Accordingly, Shareholder agrees that injunctive relief or other
equitable remedy, in addition to remedies at law or in damages, is the appropriate remedy for any
such failure and will not oppose the granting of such relief on the basis that PPBI may have an
adequate remedy at law. Shareholder agrees that Shareholder will not seek, and agrees to waive
any requirement for, the securing or posting of a bond in connection with PPBI’s seeking or
obtaining such equitable relief.
8. Term of Agreement; Termination.
(a) The term of this Agreement shall commence on the date hereof.
(b) This Agreement shall terminate upon the earlier to occur of (i) the date, if
any, of termination of the Merger Agreement in accordance with its terms, or (ii) the
Effective Time of the Merger. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided, however, such termination shall not relieve
any party from liability for any willful breach of this Agreement prior to such termination.
Notwithstanding the foregoing, in the event this Agreement is terminated upon the
Effective Time of the Merger, the provisions in Section 6 shall survive for a period of two
(2) years from the Closing Date.
9. Stop Transfer Order. In furtherance of this Agreement, Shareholder hereby
authorizes and instructs Plaza to enter a stop transfer order with respect to all of Shareholder’s
1 To be included in Shareholder Agreements signed by ▇▇▇▇▇▇▇▇▇ board representatives.
#52027286_v14
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Shares for the period from the date hereof through the date this Agreement is terminated in
accordance with Section 8, except as otherwise provided for in Section 2(a) hereof.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral,
among the parties hereto with respect to the subject matter hereof and contains the entire agreement
among the parties with respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by each party hereto. No waiver of any provisions hereof by any party
shall be deemed a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
11. Notices. All notices, requests, claims, demands or other communications hereunder
shall be in writing and shall be deemed given when delivered personally, upon receipt of a
transmission confirmation if sent by telecopy or like transmission and on the next Business Day
when sent by a reputable overnight courier service to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to PPBI to:
Pacific Premier Bancorp, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Holland & Knight LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Shareholder to:
12. Miscellaneous.
(a) Severability. If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable by a court
of competent jurisdiction, such provision or application shall be unenforceable only to the
extent of such invalidity or unenforceability, and the remainder of the provision held
#52027286_v14
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invalid or unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this Agreement,
shall not be affected.
(b) Capacity. The covenants contained herein shall apply to Shareholder solely
in his or her or its capacity as a shareholder of Plaza, and no covenant contained herein
shall apply to Shareholder in his or her capacity as a director, officer or employee of Plaza
or in any other capacity. Nothing contained in this Agreement shall be deemed to apply to,
or limit in any manner, the obligations of the Shareholder to comply with his or her
fiduciary duties as a director, officer or employee of Plaza.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) Headings. All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference shall be derived
therefrom.
(e) Governing Law; Waiver of Jury Trial. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without giving effect
to the principles of conflicts of law. Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to trial by jury
in connection with any litigation arising out of or relating to this Agreement or the
transactions contemplated hereby.
(f) Successors and Assigns; Third Party Beneficiaries. Neither this Agreement
nor any of the rights or obligations of any party under this Agreement shall be assigned, in
whole or in part, by any party without the prior written consent of the other parties hereto.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer on any Person other
than the parties hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
(g) Regulatory Compliance. Each of the provisions of this Agreement is
subject to compliance with all applicable regulatory requirements and conditions.
13. Attorney’s Fees. The prevailing party or parties in any litigation, arbitration,
mediation, bankruptcy, insolvency or other proceeding (“Proceeding”) relating to the enforcement
or interpretation of this Agreement may recover from the unsuccessful party or parties all
reasonable fees and disbursements of counsel (including expert witness and other consultants’ fees
and costs) relating to or arising out of (a) the Proceeding (whether or not the Proceeding proceeds
to judgment), and (b) any post-judgment or post-award proceeding including, without limitation,
one to enforce or collect any judgment or award resulting from the Proceeding. All such judgments
and awards shall contain a specific provision for the recovery of all such subsequently incurred
costs, expenses, and fees and disbursements of counsel.
#52027286_v14
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[Signature page follows]
#52027286_v14
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PACIFIC PREMIER BANCORP, INC.
By: _____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: _____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Executive Vice President and
Chief Financial Officer
SHAREHOLDER
________________________________
(Signature)
#52027286_v14
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EXHIBIT I
SHAREHOLDER AGREEMENT
Name of Shareholder
Shares of
Plaza Common
Stock Beneficially Owned
#52027286_v14
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EXHIBIT II
WRITTEN CONSENT
OF CERTAIN STOCKHOLDERS OF
PLAZA BANCORP
Pursuant to Section 228 of the
General Corporation Law of the State of Delaware
Pursuant to Section 228 of the Delaware General Corporation Law (the “DGCL”) and
the Certificate of Incorporation, as amended, and the Amended and Restated Bylaws, as
amended, of Plaza Bancorp, a Delaware corporation (“Plaza”), the undersigned, the holders of
________ shares of common stock, par value $0.0001 per share, of Plaza (the “Plaza Common
Stock”), constituting approximately ___% of the voting power of the outstanding shares of the
Plaza Common Stock, do hereby irrevocably consent as follows:
Adoption of the Merger Agreement and Related Matters
WHEREAS, the Board of Directors of Plaza (the “Plaza Board”) has (i) approved and
determined advisable (A) the Agreement and Plan of Reorganization, dated as of August 8, 2017,
by and between Plaza and Pacific Premier Bancorp, Inc., a Delaware corporation (“PPBI”),
which is attached hereto as Exhibit A (the “Merger Agreement”), pursuant to which, among
other things, Plaza will be merged with and into PPBI (the “Merger”), (B) the Merger and (C)
the other transactions contemplated by the Merger Agreement, (ii) determined that it is in the
best interests of Plaza’s shareholders that Plaza enter into the Merger Agreement and
consummate the Merger and the other transactions contemplated by the Merger Agreement on
the terms and subject to the conditions set forth in the Merger Agreement, (iii) determined that
the consideration to be paid to Plaza’s shareholders in the Merger is fair to such shareholders and
(iv) recommended that Plaza’s shareholders adopt the Merger Agreement;
WHEREAS, the Merger Agreement was executed by the parties thereto on August 8,
2017;
WHEREAS, the Merger Agreement provides that each share of Plaza Common Stock
issued and outstanding immediately prior to the Effective Time (as defined in the Merger
Agreement) (other than shares in respect of which appraisal rights have been properly exercised)
shall be cancelled and shall be converted automatically into the right to receive the Merger
Consideration (as defined in the Merger Agreement);
WHEREAS, the undersigned have reviewed the Merger Agreement and such other
information as they believed necessary to make an informed decision concerning their vote on
the adoption of the Merger Agreement, and the undersigned have had the opportunity to consult
#52027286_v14
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with their own legal, tax and/or financial advisor(s) regarding the consequences to them of the
Merger, the Merger Agreement and the execution of this Written Consent;
WHEREAS, the undersigned desire to waive any rights to appraisal of the fair value of
such shareholder’s shares of Plaza Common Stock and rights to dissent from the Merger that the
undersigned may have, whether pursuant to the DGCL or otherwise; and
WHEREAS, the undersigned desire to waive certain other claims in connection with this
Written Consent, the Merger Agreement and the Merger.
NOW, THEREFORE, BE IT RESOLVED, that the Merger Agreement and the
transactions and agreements contemplated thereby, including the Merger, be, and the same
hereby are, adopted and approved in all respects.
FURTHER RESOLVED, that each of the undersigned hereby irrevocably waives any
rights to appraisal of the fair value of such shareholder’s shares of Plaza Common Stock and any
rights to dissent from the Merger that the undersigned may have, whether pursuant to the DGCL
or otherwise.
FURTHER RESOLVED, that the undersigned hereby agree (on their own behalf and on
behalf of their successors-in-interest, transferees or assignees) to forego participation as a
plaintiff or member of a plaintiff class in any action (including any class action) with respect to
any claim, direct, derivative or otherwise, based on their status as shareholders of Plaza relating
to the negotiation, execution or delivery of this Written Consent or the Merger Agreement or the
consummation of (but not the failure to consummate) the Merger and the other transactions
contemplated by the Merger Agreement, and to take all necessary steps to affirmatively waive
and release any right or claim of recovery or recovery in any settlement or judgment related to
any such action reasonably requested by PPBI in writing. For the avoidance of doubt, none of the
undersigned waive, release or discharge any claims relating to the right to receive the Merger
Consideration under the Merger Agreement.
FURTHER RESOLVED, that PPBI may rely upon the foregoing waivers and
agreements as being binding in all respects against each of the undersigned.
The undersigned hereby waives compliance with any and all notice requirements
imposed by the Certificate of Incorporation, as amended, of Plaza, Plaza’s Amended and
Restated Bylaws, as amended, the DGCL and any other applicable law. This Written Consent is
effective upon execution and may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
[The remainder of this page was intentionally left blank.]
#52027286_v14
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IN WITNESS WHEREOF, each of the undersigned has executed this written consent
on the date first set forth opposite its name below.
Dated , 201 _________________________________
C-1
#52027286_v14
ANNEX C
CERTIFICATE OF MERGER
MERGING
PLAZA BANCORP, a Delaware corporation
WITH AND INTO
PACIFIC PREMIER BANCORP, INC., a Delaware Corporation
Pursuant to the provisions of Section 252(c) of the Delaware General Corporation Law
(the “DGCL”), the undersigned hereby certifies as follows concerning the merger (the “Merger”)
of Plaza Bancorp, a Delaware corporation, with and into Pacific Premier Bancorp, Inc., a Delaware
corporation (collectively, the “Constituent Corporations”), with Pacific Premier Bancorp, Inc. as
the surviving corporation (in such capacity, the “Surviving Corporation”).
FIRST: An Agreement and Plan of Reorganization, dated as of August 8, 2017 (the
“Merger Agreement”), has been approved, adopted, certified, executed and acknowledged by each
of the Constituent Corporations in accordance with Section 252(c) of the DGCL.
SECOND: The name of the Surviving Corporation (the “Surviving Corporation”) shall
be Pacific Premier Bancorp, Inc., a Delaware corporation.
THIRD: The certificate of incorporation of the Surviving Corporation shall be the
certificate of incorporation of Pacific Premier Bancorp, Inc., as amended and in effect at the
effective time of the Merger.
FOURTH: The Merger is to become effective at the time of the filing of this Certificate
of Merger with the Secretary of the State of the State of Delaware.
FIFTH: The executed Merger Agreement is on file at an office of the Surviving
Corporation, which is located at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SIXTH: A copy of the Merger Agreement will be furnished by Surviving Corporation on
request, and without cost, to any stockholder of any Constituent Corporation.
SEVENTH: The authorized capital stock of Plaza Bancorp is comprised of 50,000,000
shares of common stock, $0.0001 par value, and 1,000,000 shares of preferred stock, no par value.
(Signature page follows.)
#52027286_v14
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IN WITNESS WHEREOF, the parties hereto have caused this Certificate of Merger to be
duly executed by their respective authorized officers and filed in accordance with Section 252(c)
of the DGCL as of _________________ [___], 201 .
PACIFIC PREMIER BANCORP, INC.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer
PLAZA BANCORP
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
#52027286_v14
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ANNEX D
FORM OF
BANK MERGER AGREEMENT
Bank Merger Agreement, dated as of ____________, 20__ (“Bank Merger Agreement”),
by and between Plaza Bank (“Plaza Bank”) and Pacific Premier Bank (“Pacific Premier”).
WITNESSETH:
WHEREAS, Plaza Bank is a California-chartered bank and wholly-owned subsidiary of
Plaza Bancorp, a Delaware corporation (“Plaza”), which has its principal place of business in
Irvine, California; and
WHEREAS, Pacific Premier is a California-chartered bank and a wholly-owned
subsidiary of Pacific Premier Bancorp, Inc., a Delaware corporation (“PPBI”), which has its
principal place of business in Irvine, California; and
WHEREAS, PPBI and Plaza have entered into an Agreement and Plan of Reorganization,
dated as of August 8, 2017 (the “Agreement”), pursuant to which Plaza will merge with and into
PPBI, with PPBI as the surviving corporation (the “Parent Merger”); and
WHEREAS, the Boards of Directors of Plaza Bank and Pacific Premier have approved
and deemed it advisable to consummate the merger provided for herein in which Plaza Bank would
merge with and into Pacific Premier on the terms and conditions herein provided immediately
following the effective time of the Parent Merger.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. The Merger. Subject to the terms and conditions of this Bank Merger Agreement,
at the Effective Time, Plaza Bank shall merge with and into Pacific Premier (the “Merger”) under
the laws of the State of California. Pacific Premier shall be the surviving corporation of the Merger
(the “Surviving Bank”) and the separate existence of Plaza Bank shall cease.
2. Articles of Incorporation and Bylaws. The Articles of Incorporation and the
Amended and Restated Bylaws of Pacific Premier in effect immediately prior to the Effective Time
shall be the governing documents of the Surviving Bank, until altered, amended or repealed in
accordance with their terms and applicable law.
3. Name; Offices. The name of the Surviving Bank shall be “Pacific Premier Bank.”
The main office of the Surviving Bank shall be the main office of Pacific Premier immediately
prior to the Effective Time. All branch offices of Plaza Bank and Pacific Premier which were in
lawful operation immediately prior to the Effective Time shall continue to be the branch offices of
the Surviving Bank upon consummation of the Merger, subject to the opening or closing of any
#52027286_v14
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offices which may be authorized by Plaza Bank and Pacific Premier and applicable regulatory
authorities after the date hereof.
4. Directors and Executive Officers. The directors and executive officers of the
Surviving Bank immediately after the Merger shall be the directors and executive officers of
Pacific Premier immediately prior to the Merger, except that [___________] shall be appointed as
a director of Surviving Bank effective as of the Effective Time (as defined below).
5. Effects of the Merger. At the Effective Time, the effect of the Merger shall be as
provided in the General Corporation Law of the State of California. Without limiting the generality
of the foregoing and subject thereto, at the Effective Time:
(a) all rights, franchises and interests of Plaza Bank in and to every type of
property (real, personal and mixed), tangible and intangible, and choses in action shall be
transferred to and vested in the Surviving Bank by virtue of the Merger without any deed or other
transfer, and the Surviving Bank, without any order or other action on the part of any court or
otherwise, shall hold and enjoy all rights of property, franchises and interests, including
appointments, designations and nominations, and all other rights and interests as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver and committee,
and in every other fiduciary capacity, in the same manner and to the same extent as such rights,
franchises and interest were held or enjoyed by Plaza Bank immediately prior to the Effective
Time; and
(b) the Surviving Bank shall be liable for all liabilities of Plaza Bank, fixed or
contingent, including all deposits, accounts, debts, obligations and contracts thereof, matured or
unmatured, whether accrued, absolute, contingent or otherwise, and whether or not reflected or
reserved against on balance sheets, books of account or records thereof, and all rights of creditors
or obligees and all liens on property of Plaza Bank shall be preserved unimpaired; after the
Effective Time, the Surviving Bank will continue to issue savings accounts on the same basis as
immediately prior to the Effective Time.
6. Effect on Shares of Stock.
(a) Plaza Bank. As of the Effective Time, each share of Plaza Bank common
stock issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger
and without any action on the part of the holder thereof, be cancelled without consideration. Any
shares of Plaza Bank common stock held in the treasury of Plaza Bank prior to the Effective Time
shall be retired and cancelled.
(b) Pacific Premier. Each share of the Pacific Premier’s common stock issued
and outstanding immediately prior to the Effective Time shall be unchanged and shall remain
issued and outstanding.
7. Counterparts. This Bank Merger Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one agreement.
#52027286_v14
D-3
8. Governing Law. This Bank Merger Agreement shall be governed in all respects,
including, but not limited to, validity, interpretation, effect and performance, by the laws of the
State of California.
9. Amendment. Subject to applicable law, this Bank Merger Agreement may be
amended, modified or supplemented only by written agreement of Pacific Premier and Plaza Bank
at any time prior to the Effective Time.
10. Waiver. Any of the terms or conditions of this Bank Merger Agreement may be
waived at any time by whichever of the parties hereto is, or the shareholders of which are, entitled
to the benefit thereof by action taken by the Board of Directors of such waiving party.
11. Assignment. This Bank Merger Agreement may not be assigned by any party
hereto without the prior written consent of the other party.
12. Termination. This Bank Merger Agreement shall terminate upon the termination
of the Agreement prior to the Effective Time in accordance with its terms. The Bank Merger
Agreement may also be terminated at any time prior to the Effective Time by an instrument
executed by Plaza Bank and Pacific Premier.
13. Conditions Precedent. The obligations of the parties under this Bank Merger
Agreement shall be subject to (i) receipt of approval of the Merger from all governmental and bank
regulatory authorities whose approval is required; (ii) receipt of any necessary regulatory approval
to operate the main office and the branch offices of Plaza Bank as offices of Pacific Premier; and
(iii) the consummation of the Parent Merger pursuant to the Agreement on or before the Effective
Time.
14. Procurement of Approvals. Plaza Bank and Pacific Premier shall use reasonable
best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Bank Merger Agreement, subject to and in
accordance with the applicable provisions of the Agreement, including without limitation the
preparation and submission of such applications or other filings for approval of the Merger to the
governmental authorities as may be required by applicable laws and regulations.
15. Effectiveness of Merger. The Merger shall become effective on the date and at
the time that this Bank Merger Agreement, as certified by the California Secretary of State, is filed
with the California Department of Business Oversight - Division of Financial Institutions, or as set
forth in such filing (the “Effective Time”).
16. Entire Agreement. Except as otherwise set forth in this Bank Merger Agreement
and the Agreement, the Agreement and this Bank Merger Agreement (including the documents
and the instruments referred to herein) constitute the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with respect to the subject
matter hereof. To the extent of a conflict between the terms of the Agreement and the terms of
this Bank Merger Agreement, the terms of the Agreement shall control.
[Signature page follows]
#52027286_v14
D-4
IN WITNESS WHEREOF, each of Pacific Premier and Plaza Bank has caused this Bank
Merger Agreement to be executed on its behalf by its duly authorized officers.
PACIFIC PREMIER BANK
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: _____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, General Counsel,
Chief Risk Officer and Corporate Secretary
PLAZA BANK
By: _____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: _____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Secretary
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#52027286_v14
ANNEX E
PACIFIC PREMIER BANCORP, INC.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_________ __, 201_
▇▇▇▇▇▇▇▇▇ Community BancFund, ▇.▇.
▇▇▇▇▇▇▇▇▇ Community BancFund-A, ▇.▇.
▇▇▇▇▇▇▇▇▇ Community BancFund-CA, L.P.
c/▇ ▇▇▇▇▇▇▇▇▇ Fund Manager GP, LLC
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Investor Rights Agreement
Gentlemen:
This letter will confirm our agreement with ▇▇▇▇▇▇▇▇▇ Fund Manager GP, LLC (the
“Manager”), on behalf of, and as general partner of, each of ▇▇▇▇▇▇▇▇▇ Community BancFund,
L.P., ▇▇▇▇▇▇▇▇▇ Community BancFund-A, L.P. and ▇▇▇▇▇▇▇▇▇ Community BancFund-CA, L.P.
(collectively, the “Investors”), that pursuant to and effective as of the consummation of the merger
(the “Merger”) of Plaza Bancorp (“Plaza”) with and into Pacific Premier Bancorp, Inc. (“PPBI”),
pursuant to that certain Agreement and Plan of Reorganization dated as of August 8, 2017, by and
between Plaza and PPBI (the “Merger Agreement”), the Manager, on behalf of the Investors, shall
be entitled to the following rights, in addition to any rights specifically provided to all shareholders
of PPBI. All terms used herein and not defined herein shall have the meanings assigned to them
in the Merger Agreement.
1. Board Representation.
(i) The Manager has identified ▇▇▇▇▇ ▇. ▇▇▇▇▇ to PPBI and Pacific Premier
Bank (“Pacific Premier”) or, if ▇▇. ▇▇▇▇▇ is unable to serve, the Manager will identify another
individual mutually acceptable to the Manager and PPBI (the “Manager Nominee”) to potentially
serve on the Board of Directors of PPBI (the “PPBI Board”) and the Board of Directors of Pacific
Premier Bank (the “Pacific Premier Board”). If requested by the Manager prior to the effectiveness
of the Merger, PPBI and Pacific Premier Bank agree that, upon such effectiveness, each will
appoint such Manager Nominee to the PPBI Board and to the Pacific Premier Board, subject to:
(a) such Manager Nominee being qualified to serve as a member of the PPBI Board and the Pacific
Premier Board under all applicable corporate governance policies or guidelines of PPBI and
Pacific Premier, and applicable legal, regulatory and stock market requirements, (b) the reasonable
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#52027286_v14
approval of the Corporate Governance and Nominating Committee of the PPBI Board (such
approval not to be unreasonably withheld or delayed) and (c) the receipt of any necessary
regulatory approvals.
(ii) From and after the Merger, and for so long as the Investors’ beneficial
ownership (as determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of the issued and outstanding shares of the common stock of PPBI (“Investors’
Beneficial Ownership”) is equal to 9.90% or more, PPBI will take all lawful action to, if requested
by the Manager, (i) elect the Manager Nominee to the Pacific Premier Board and (ii) nominate and
recommend to its shareholders the Manager Nominee for election to the PPBI Board at PPBI’s
annual meeting of shareholders. If so requested by the Manager, PPBI shall use its reasonable best
efforts to cause the Manager Nominee to be elected as a director of PPBI, and PPBI shall solicit
proxies for such person to the same extent as it does for any of its other nominees to the PPBI
Board. The Manager shall notify PPBI of any proposed Manager Nominee to the PPBI Board, in
writing, no later than the latest date on which shareholders of PPBI may make nominations to the
PPBI Board in accordance with the bylaws of PPBI, together with all information concerning such
nominee reasonably requested by PPBI, so that PPBI can comply with applicable disclosure rules
(the “Nominee Disclosure Information”); provided that in the event the Manager fails to provide
any such notice, the Manager Nominee shall be the person then serving as the Manager Nominee
as long as the Manager provides the Nominee Disclosure Information to PPBI promptly upon
request by PPBI.
(iii) If the Manager Nominee ceases to serve as a director of the PPBI Board
and/or the Pacific Premier Board for any reason (other than due to the fact that the Investors’
Beneficial Ownership falls below the threshold set forth in this letter agreement), PPBI shall, if so
requested by the Manager, use its reasonable best efforts to take all action required to fill the
vacancy or vacancies created thereby with an individual designated by the Manager (a “Manager
Successor Designee”) to serve in place of such Manager Nominee for the remainder of the term
that the Manager Nominee who is being replaced would have served if he or she had not been
replaced, subject to such Manager Successor Designee being reasonably acceptable to PPBI and
qualified to serve as a member of the PPBI Board and the Pacific Premier Board under all
applicable corporate governance policies or guidelines of PPBI and Pacific Premier and applicable
legal, regulatory and stock market requirements. During any period when a Manager Nominee is
not serving on the PPBI Board or Pacific Premier Board but the Manager is entitled to have board
representation hereunder, the Manager shall be entitled to receive all materials distributed for or
at all meetings (telephonic or otherwise) of the PPBI Board and the Pacific Premier Board and
their respective committees, except for any documents subject to an attorney-client or attorney-
client work product privilege.
(iv) Subject to subsection 1(v) below, if a Manager Nominee is nominated by
PPBI but not elected to the PPBI Board, PPBI shall, if so requested by the Manager, immediately
increase the size of the PPBI Board and appoint an individual designated by the Manager and
reasonably acceptable to PPBI (such individual to be different from the individual who was not
elected by the shareholders of PPBI) to the PPBI Board.
(v) Anything to the contrary provided in this Section 1 notwithstanding, no
increase in the size of the PPBI Board shall be required by this Section 1 if it would cause the size
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of the PPBI Board to exceed the maximum size permitted under PPBI’s Amended and Restated
Certificate of Incorporations (“Certificate of Incorporation”) or Amended and Restated Bylaws
(“Bylaws”); provided that PPBI shall use its reasonable best efforts to amend such Certificate of
Incorporation or Bylaws to increase the number of directorships necessary to appoint the individual
designated by the Manager, including, without limitation, submitting a shareholder proposal to
amend the Certificate of Incorporation or Bylaws to increase the number of seats submitted to a
vote of shareholders at PPBI’s next annual meeting of shareholders.
(vi) At such time as the Investors’ Beneficial Ownership is less than 9.90% the
Manager will have no further rights under this letter agreement, and at the written request of the
PPBI Board, the Manager shall use its reasonable best efforts to cause the Manager Nominee to
resign from the PPBI Board as promptly as possible thereafter, and at the written request of the
Pacific Premier Board, the Manager shall use its reasonable best efforts to cause the Manager
Nominee to resign from the Pacific Premier Board as promptly as possible thereafter.
2. Resale Registration Statement.
(i) PPBI agrees to cause to be included in the Registration Statement for
registration for resale those shares of PPBI Common Stock to be issued to the Investors as Merger
Consideration (such shares, together with any shares issued or issuable upon any stock split,
distribution, recapitalization or similar event, the “Registrable Securities”). PPBI further agrees
to maintain the effectiveness of the Registration Statement and cause the Registration Statement
and any related prospectus or prospectus supplement to be appropriately updated as described in
paragraph (v) below until the Registrable Securities may be freely traded without a prospectus
pursuant to Rule 144 of the Securities Act or otherwise (such period of time, the “Effectiveness
Period”).
(ii) Each Investor shall prepare and furnish such information relating to it and
its Affiliates as may be reasonably required in connection with the preparation of the Registration
Statement, and the Investors and their legal advisors shall have the right to review the Registration
Statement prior to its filing.
(iii) Each Investor agrees that none of the information supplied or to be supplied
by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the
Registration Statement and each amendment or supplement thereto, if any, becomes effective
under the Securities Act, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading. Each Investor further agrees that if it shall become aware prior to the Effective Date
of any information furnished by it that would cause any of the statements in the Registration
Statement to be false or misleading with respect to any material fact, or to omit to state any material
fact necessary to make the statements therein not false or misleading, to promptly inform PPBI
thereof and to take the necessary steps to correct the Registration Statement.
(iv) PPBI agrees to advise the Investors, promptly after PPBI receives notice
thereof, of the time when the Registration Statement has become effective or any supplement or
amendment has been filed, of the issuance of any stop order or the suspension of the qualification
of PPBI Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent
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PPBI is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC
for the amendment or supplement of the Registration Statement or for additional information.
(v) In connection with PPBI’s registration obligations hereunder, PPBI shall:
(a) (1) prepare and file with the SEC such amendments, including post-
effective amendments, to such Registration Statement as may be necessary to keep the Registration
Statement continuously effective as to the Registrable Securities for the Effectiveness Period and
prepare and file with the SEC such additional Registration Statements as necessary in order to
register for resale under the Securities Act all of the Registrable Securities and (2) cause the related
prospectus to be amended or supplemented by any required prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act, in each of the cases of clauses (1) and (2) so that the
Registration Statement and prospectus or prospectus supplement may be used continuously by the
Members to sell the Registrable Securities throughout the Effectiveness Period;
(b) cooperate with the Investors so that the shares of Registrable
Securities are DTC-eligible from and after the time that the Registration Statement is declared
effective by the SEC; and
(c) make all required periodic filings with the SEC such that, following
the time at which the Registrable Securities become eligible to be sold pursuant to Rule 144 of the
Securities Act, the Registrable Securities do not become ineligible to be sold pursuant to Rule 144
of the Securities Act.
3. Non-Solicitation.
(i) Manager agrees that for a period of two (2) years following the Closing
Date, Manager and the Investors will not directly or indirectly:
(a) solicit (other than general solicitations through newspapers or other
media of general circulation, or the engagement of professional search firms, not targeted at such
employees) any employees of Plaza or its Subsidiaries prior to the Closing (“Plaza Employees”);
provided, however, that the foregoing shall not apply to any Plaza Employee (1) who does not
become an employee of PPBI or any of its Subsidiaries or is terminated by PPBI or any of its
Subsidiaries without cause on or after the Closing Date; or (2) whose employment terminated more
than six months prior to the time that such Plaza Employee is first solicited for employment
following the Closing Date; or
(b) knowingly (1) induce, persuade, encourage or influence or attempt
to induce, persuade, encourage or influence any Person having a business relationship with Plaza
or its Subsidiaries prior to the Closing Date, to discontinue, reduce or restrict such relationship
with PPBI or its Subsidiaries after the Closing Date, provided that nothing herein shall prevent
Manager from conducting or engaging in business with any Person who was not solicited in
violation of Section 3(i)(b)(2), or (2) solicit or target the deposits, loans or other products and
services from or to Persons who were depositors, borrowers or customers of Plaza or its
Subsidiaries on the date of this Agreement, and/or as of the Closing Date, whether by personal
contact, by telephone, by facsimile, by mail or other form of solicitation or communication, or in
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any other way except for general solicitations that are directed to the general public and not
directed specifically to Persons who were depositors, borrowers or customers of Plaza or its
Subsidiaries on the date of this Agreement, or as of the Closing Date. Notwithstanding the
foregoing and for purposes of clarity, nothing herein shall prohibit the Manager or the Investors
from exercising their discretion relating to their business banking relationships.
Notwithstanding the foregoing or anything to the contrary contained herein, the parties
hereto acknowledge and agree that the restrictions set forth in this Section 3 shall not apply to any
affiliate, representative, client or portfolio company of Manager.
(ii) The Manager acknowledges and agrees that the business conducted by
Plaza and its Subsidiaries is highly competitive and that the covenants made by the Manager in
this Section 3 are made as a necessary inducement for PPBI to enter into the Merger Agreement
and to consummate the transactions contemplated thereby. It is the desire and intent of the parties
to this letter agreement that the provisions of this Section 3 shall be enforced to the fullest extent
permissible under the laws and public policies of each jurisdiction in which enforcement is sought.
It is expressly understood and agreed that although the Manager and PPBI each consider the
restrictions contained in this Section 3 to be reasonable, if a final determination is made by a court
of competent jurisdiction or an arbitrator that the time or territory or any other restriction contained
in this Section 3 is unenforceable against any party, the provisions of this Section 3 shall be deemed
amended to apply as to such maximum time and territory and to such maximum extent as such
court may judicially determine or indicate to be enforceable.
(iii) The Manager acknowledges and agrees that the provisions of this
Agreement are necessary to protect PPBI’s legitimate business interests and to protect the value of
PPBI’s acquisition of Plaza.
(iv) The Manager will not, at any time during the two-year period referred to in
Subsection 3(i) of this Agreement, disparage PPBI, its Subsidiaries or any of its Affiliates, or the
business conducted by PPBI, its Subsidiaries or any of their Affiliates, or any stockholder,
member, director, manager, officer, employee or agent of PPBI, its Subsidiaries or any of their
Affiliates.
4. Termination. This letter agreement shall automatically terminate and be of no
further force or effect, without any action on the part of any of the parties hereto, in the event of
the sale of substantially all of the assets PPBI or a change of control of PPBI, which shall be
deemed to include any transaction or series of related transactions pursuant to which the
shareholders of PPBI prior to such transaction or series of transactions hold less than a majority of
the voting power of PPBI or any successor in interest thereto or less than a majority in interest of
all or substantially all of the assets of PPBI.
5. Confidential Information. The Manager and each Investor agrees that it will not
disclose to any third party any information provided by PPBI or Pacific Premier hereunder, which
is not generally available to the public or which is specifically designated by PPBI or Pacific
Premier as confidential, except with the prior express approval of PPBI’s Chief Executive Officer,
or as may otherwise be required by applicable law.
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6. Federal Securities Laws. Each of the Investors shall comply with all federal
securities laws in connection its exercise of its rights under this letter agreement and its purchases
and sales of PPBI’s securities, and agrees to be bound by the “▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇” policy of PPBI
during any period during which it is exercising its rights under this letter agreement.
7. Entire Agreement; Assignment; and Amendment. This letter agreement constitutes
the only agreement between the Investors and the Manager, on the one hand, and PPBI and Pacific
Premier, on the other hand, with respect to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or written. The rights
provided by this letter agreement are personal to the Investors and the Manager and in no event
shall such rights be assignable. No amendment, modification, supplement or waiver of any
provision of this letter agreement may in any event be effective unless in writing and signed by
the parties affected thereby, and then only in the specific instance and for the specific purpose
given.
8. Counterparts. This letter agreement may be executed in any number of counterparts
(including by facsimile and pdf file), each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument. The parties hereto need not
execute the same counterpart.
9. Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this letter agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware, without regard to the principles of
conflicts of law thereof. Each party agrees that all proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this letter agreement may be
commenced on a non-exclusive basis in the California Courts. Each party hereto hereby
irrevocably submits to the non-exclusive jurisdiction of the California Courts for the adjudication
of any dispute hereunder, and hereby irrevocably waives, and agrees not to assert in any
proceeding, any claim that it is not personally subject to the jurisdiction of any such California
Court, or that such proceeding has been commenced in an improper or inconvenient forum. Each
party hereto hereby irrevocably waives personal service of process and consents to process being
served in any such proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in effect for notices to
it under this letter agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law.
The Manager and Investors agree, and any representative of the Manager and Investors
will agree, to hold in confidence and trust and not disclose any confidential information provided
to or learned by them in connection with their rights under this letter agreement.
Very truly yours,
PACIFIC PREMIER BANCORP, INC.
By: ______________________________
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title President and Chief Executive Officer
AGREED AND ACCEPTED:
▇▇▇▇▇▇▇▇▇ Community BancFund, L.P., and
▇▇▇▇▇▇▇▇▇ Community BancFund-A, L.P., and
▇▇▇▇▇▇▇▇▇ Community BancFund-CA, L.P.
By: ▇▇▇▇▇▇▇▇▇ Fund Manager GP, LLC
Their General Partner
By: ______________________________
Name:
Title
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#52027286_v14
ANNEX F
TENANT ESTOPPEL LETTER
, 201__
Pacific Premier Bancorp, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: , as amended (“Lease”) by and
between (“Landlord”) and
(“Tenant”) for the premises commonly
known as (“Premises”)
Dear :
In connection with the acquisition of Plaza Bancorp (“Plaza”) and its subsidiary Plaza Bank
(“Plaza Bank”) by Pacific Premier Bancorp, Inc. (“Assignee”) pursuant to a merger of Plaza with
and into Assignee and a merger of Plaza Bank with and into Pacific Premier Bank, a subsidiary of
Assignee (collectively, the “Merger”), and the corresponding assignment of the above referenced
Lease, the undersigned Tenant hereby certifies to Assignee that the following statements are true,
correct and complete as of the date hereof:
1. Tenant is the tenant under the Lease for the Premises. There have been no
amendments, modifications or revisions to the Lease, and there are no agreements of any
kind between Landlord and Tenant regarding the Premises, except as provided in the
attached Lease.
2. Attached hereto as Schedule A is a true, correct and complete copy of the Lease
which has been duly authorized and executed by Tenant and which is in full force and
effect.
3. Tenant has accepted and is in sole possession of the Premises and is presently
occupying the Premises. The Lease has not been assigned, by operation of law or
otherwise, by Tenant, and no sublease, concession agreement or license, covering the
Premises, or any portion of the Premises, has been entered into by Tenant. If the landlord
named in the Lease is other than Landlord, Tenant has received notice of the assignment
to Landlord of the landlord’s interest in the Lease and Tenant recognizes Landlord as the
landlord under the Lease.
4. No rent under the Lease has been paid more than one (1) month in advance, and
no other sums or security deposits have been deposited with Landlord, except in the
amount of $ . (If none, state “NONE”). Tenant is not entitled to rent concessions or free
rent.
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5. All conditions and obligations of Landlord relating to completion of tenant
improvements and making the Premises ready for occupancy by Tenant have been satisfied
or performed and all other conditions and obligations under the Lease to be satisfied or
performed by Landlord as of the date hereof have been fully satisfied or performed.
6. There exists no defense to, or right of offset against, enforcement of the Lease
by Landlord. Neither Landlord nor Tenant is in default under the Lease and no event has
occurred which, with the giving of notice or passage of time, or both, could result in such
a default.
7. Tenant has not received any notice of any present violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or directives relating to the use
or condition of the Premises.
8. Except as specifically stated herein, Tenant has not been granted (a) any option
to extend the term of the Lease; (b) any option to expand the Premises or to lease additional
space within the Premises; (c) any right to terminate the Lease prior to its stated expiration;
or (d) any option or right of first refusal to purchase the Premises or any part thereof.
9. Tenant acknowledges having been notified that Landlord’s interest in and to the
Lease has been, or will be, assigned to Assignee. Until further notice from Landlord,
however, Tenant will continue to make all payments under the Lease to Landlord and
otherwise look solely to Landlord for the performance of the Landlord’s obligations under
the Lease.
The agreements and certifications set forth herein are made with the knowledge and intent
that Assignee will rely on them in purchasing the Premises, and Assignee’s successors and assigns
may rely upon them for that purpose.
Very truly yours,
[TENANT]
___________________________________
By: _______________________________
Name: _____________________________
Title: ______________________________
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SCHEDULE A
LEASE
[INSERT]
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#52027286_v14
ANNEX G
LANDLORD ESTOPPEL LETTER
, 201__
Pacific Premier Bancorp, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: , as amended (“Lease”) by and
between (“Landlord”) and
(“Tenant”) for the premises commonly
known as (“Premises”)
Dear :
In connection with the acquisition of Plaza Bancorp (“Plaza”) and its subsidiary Plaza Bank
(“Plaza Bank”) by Pacific Premier Bancorp, Inc. (“Assignee”) pursuant to a merger of Plaza with
and into Assignee and a merger of Plaza Bank with and into Pacific Premier Bank, a subsidiary of
Assignee (collectively, the “Merger”), and the corresponding assignment of the above referenced
Lease, the undersigned Landlord hereby certifies to Assignee that the following statements are
true, correct and complete as of the date hereof:
1. Tenant is the tenant under the Lease for the Premises. There have been no
amendments, modifications or revisions to the Lease, and there are no agreements of any kind
between Landlord and Tenant regarding the Premises, except as provided in the attached Lease.
2. Attached hereto as Schedule A is a true, correct and complete copy of the Lease
which has been duly authorized and executed by Landlord and which is in full force and effect.
3. Tenant has accepted and is in sole possession of the Premises and is presently
occupying the Premises. To the Landlord’s knowledge, the Lease has not been assigned, by
operation of law or otherwise, by Tenant, and no sublease, concession agreement or license,
covering the Premises, or any portion of the Premises, has been entered into by Tenant.
4. No rent under the Lease has been paid to Landlord more than one (1) month in
advance, and no other sums or security deposits have been deposited with Landlord, except in the
amount $ . (If none, state “NONE”). Tenant is not entitled to rent concessions or free
rent.
5. All conditions and obligations under the Lease to be satisfied or performed by
Landlord and Tenant as of the date hereof have been fully satisfied or performed.
6. Neither Landlord nor Tenant is in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could result in such a default.
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7. Landlord has not received any notice of any present violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or directives relating to the use or
condition of the Premises.
8. Except as specifically stated herein, Tenant has not been granted any option to
extend the term of the Lease, except as set forth in the Lease.
9. Landlord hereby consents to the Merger and the resulting assignment of the Lease
to Assignee.
The agreements and certifications set forth herein are made with the knowledge and intent
that Assignee will rely on them in purchasing the Premises, and Assignee’s successors and assigns
may rely upon them for that purpose.
Very truly yours,
[LANDLORD]
___________________________________
By: _______________________________
Name: _____________________________
Title: ______________________________
G-3
#52027286_v14
SCHEDULE A
LEASE
[INSERT]