Exhibit 99.2
AGREEMENT AND MUTUAL GENERAL RELEASE
This Agreement and Mutual General Release ("Agreement") is made and
entered into as of this 5th day of January 2004 by and among New Life Holdings,
LLC, a California limited liability company ("Investor") and Pacific Premier
Bancorp, Inc., a Delaware corporation ("Borrower") and Pacific Premier Bank
("Bank"), a federally chartered savings bank, with reference to the following
facts:
A. Investor and Borrower are parties to a certain Note and Warrant Purchase
Agreement dated November 20, 2001 (the "Note and Warrant Purchase
Agreement"), pursuant to which, among other things, Borrower issued a $12
million senior secured note to Investor (the "Note"), which Note was repaid
in full by Borrower on October 17, 2003.
B. There are certain continuing covenants and obligations under the Note and
Warrant Purchase Agreement which survive the repayment of the Note and the
parties hereto wish to terminate certain of such provisions, to amend
certain of such provisions and to acknowledge the continuance of certain of
such provisions.
C. The parties wish to settle a dispute with respect to claims made for the
payment of certain legal fees under the Note and Warrant Purchase Agreement
to Investor.
NOW, THEREFORE, the parties hereto agree as follows:
1. Note and Warrant Purchase Agreement
-----------------------------------
(a) Section 9.6 of the Note and Warrant Purchase Agreement is revised to
read in full as follows:
"9.6 Corporate Governance. As soon as practical following the
execution of this Agreement, Investor shall cause the three
Board members previously designated by Investor, Ezri Namvar
("Namvar"), Richard Marr ("Marr") and Thomas Palmer
("Palmer"), to submit their immediately effective written
resignations from the Board of Directors of the Borrower, from
the Board of Directors of the Bank and from any committees of
the Board of Directors of Borrower or the Bank. Investor shall
have no further right to designate any directors to the Board
of Directors of the Borrower or the Bank. As soon as practical
following the execution of this Agreement, Borrower shall use
its best efforts to cause the resulting board vacancy created
by Mr. Namvar's resignation, whose unexpired term runs until
the 2005 annual meeting of shareholders of Borrower, to be
filled by Roy Henderson, and the resulting board vacancy of
1
Mr. Palmer, whose unexpired term runs until the 2004 annual
meeting of shareholders of Borrower, to be filled by Sam
Yellin. Further, Borrower agrees, subject to the consent of
Mr. Yellin, to cause the nomination of Sam Yellin to
Borrower's proposed slate of directors to be nominated for
election at Borrower's 2004 annual meeting of shareholders.
The resulting board vacancy caused by the resignation of Mr.
Marr shall be left vacant; provided, however, that on or
before the date of Borrower's 2004 annual meeting of
shareholders, Borrower shall use its best efforts to fill the
vacancy on the Board created by Mr. Marr's vacancy, provided,
further, that such vacancy shall be filled only by a director
who (i) meets the standards for an "independent director"
under the rules and regulations of the Securities and Exchange
Commission ("SEC") and Nasdaq, and (ii) is approved by a
majority of Borrower's Board of Directors, provided that
included in such majority shall be Messrs. Yellin and
Henderson (if Directors of Borrower at that time). If Mr.
Henderson or Mr. Yellin resign from the Board of Directors of
Borrower at any time prior to Borrower's 2005 annual meeting
of shareholders, such vacancy shall be filled only by a
director who (i) meets the standards for an "independent
director" under the rules and regulations of the Securities
and Exchange Commission ("SEC") and Nasdaq, and (ii) is
approved by a majority of Borrower's Board of Directors,
provided that included in such majority shall be whichever of
Messrs. Yellin and Henderson remains on the Board following
such resignation. It is acknowledged and agreed that directors
Henderson and Yellin shall join the Board of Directors of the
Borrower and Bank independent of any "designation" by Investor
and will be independent directors on the respective Boards,
subject to their continuing to meet the director independence
standards of the SEC and Nasdaq. Borrower and the Bank shall
continue to perform their respective obligations to Messrs.
Namvar, Marr and Palmer with respect to indemnification from
Borrower and/or the Bank related to his services as a director
of PPBI and/or the Bank, as such indemnification rights are
provided for under applicable law, under any charter or by-law
provision of PPBI or the Bank or pursuant to any existing
indemnification agreement between the Director and PPBI and/or
the Bank."
(b) The following provisions of the Note and Warrant Purchase
Agreement shall remain in full force and effect, and shall
continue in full force and effect until the originally
scheduled expiration of such provisions as provided for in
the Note and Warrant Purchase Agreement.
(i) Section 16.6 (Notices);
(ii) Section 16.7 (Governing Law);
(iii) Section 16.8 (Submission to Jurisdiction: Waiver of
Service and Venue);
2
(iv) Section 16.9 (Indemnification);
(v) Section 16.10 (Registration
Rights); and
(vi) Section 16.15 (Waiver of Right to Trial by Jury).
(c) Except as expressly provided in this Section 1, the terms
and provisions of the Note and Warrant Purchase Agreement
are hereby terminated and are of no further force and
effect; provided, the Warrant to purchase 1,166,400 shares
(subject to adjustment) of Borrower dated January 14, 2002
(the "Warrant") issued to Investor pursuant to the Note and
Warrant Purchase Agreement shall remain outstanding subject
to the terms of such Warrant.
(d) Concurrent with the execution of this Agreement, Directors
Namvar, Palmer and Marr have delivered resignation letters
in substantially the form of Exhibit A-1, A-2 and A-3,
respectively, and the Borrower and the Bank and Mr. Namvar
has executed and delivered the Mutual Releases set forth as
Exhibit B-1.
2. Payment of Legal Fees
---------------------
Upon execution of this Agreement, Borrower agrees to pay to
Investor an aggregate of $27,289 as payment in full for all legal fees
and expenses due and payable to Investor by Borrower under the Note and
Warrant Purchase Agreement other than with respect to legal fees and
expenses incurred in connection with the negotiation of the terms of
the settlement set forth herein and the review and preparation of this
Agreement. In addition, Borrower shall pay to Investor the legal fees
and expenses incurred by Investor with respect to the negotiation of
the terms of the settlement set forth herein, including the review and
preparation of this Agreement, within 10 calendar days of presentation
to Borrower of invoices for such legal fees and expenses, provided,
however, Borrower shall only be required to reimburse Investor for a
maximum of up to $7,500 in legal fees and expenses incurred by Investor
in connection with the review and preparation of this Agreement.
3. Mutual General Release.
-----------------------
(a) Except as otherwise expressly provided herein, Investor hereby
releases and forever discharges Borrower, the Bank, and their
officers, directors, agents, affiliates, successors and assigns,
from any and all claims, debts, losses, covenants, agreements,
contracts, liabilities, demands, obligations, accounts, expenses,
actions, causes of action and suits, whether past, present or
future, known or unknown, at law or in equity, of whatever kind
or nature whatsoever (collectively, "Claims"), which Investor now
has, owns, or holds, or has at any time heretofore had, owned or
held, or may at any time hereafter have, own or hold, by reason
of any fact, matter, cause or thing whatsoever from the beginning
of time to the date hereof, including, without limitation, any
and all matters arising from or in connection with the Note and
Warrant Purchase Agreement and any other fact or matter arising
out of or in connection with any agreement or alleged agreement
between Investor and Borrower or the Bank, whether written or
oral. The foregoing release shall not extend to Investor's rights
to enforce the provisions of this Agreement or the Warrants.
3
(b) Except as otherwise expressly provided herein, Borrower and the
Bank hereby release and forever discharge Investor and its
members, managers, officers, directors, agents, affiliates,
successors and assigns, from any and all Claims, which Borrower
or the Bank now has, owns, or holds, or has at any time
heretofore had, owned or held, or may at any time hereafter have,
own or hold, by reason of any fact, matter, cause or thing
whatsoever from the beginning of time to the date hereof,
including, without limitation, any and all matters arising from
or in connection with the Note and Warrant Purchase Agreement and
any other fact or matter arising out of or in connection with any
agreement or alleged agreement between Investor and Borrower or
the Bank, whether written or oral. The foregoing release shall
not extend to the rights of Borrower or the Bank to enforce the
provisions of this Agreement or the Warrants.
(c) Except as otherwise set forth herein, each party agrees that this
Agreement shall be effective as a full and final accord and
satisfaction and release of each and every matter hereinabove
referred to. In furtherance of this intention, each party
acknowledges that each party is familiar with Section 1542 of the
California Civil Code, which provides as follows:
"A general release does not extend to claims
which the creditor does not know or suspect
to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settlement
with the debtor."
Except as otherwise set forth herein, each party waives and
relinquishes any rights and benefits which that party has or
may have under Section 1542 of the California Civil Code, to
the fullest extent permitted by law. In connection with such
waiver and relinquishment, each party acknowledges that any
party may hereafter discover claims or facts in addition to or
different from those which each party now knows or believes to
exist with respect to the subject matter of this Agreement,
but that it is each party's intention hereby fully, finally
and forever to settle and release any and all released
4
matters, disputes and differences, known or unknown, suspected
or unsuspected, which now exist, may exist, or heretofore have
existed, as set forth herein. In furtherance of such
intention, and except as otherwise expressly reserved herein,
the releases herein given shall be and remain in effect as
full and complete general release, notwithstanding the
discovery or existence of any such additional or different
claims or facts.
(d) Each party acknowledges and agrees that it has not assigned to
any third party any Claim or any interest in any Claim that it
has or at any time has had against any other party, and that it
has the full power and authority to enter into this Agreement and
the release of Claims included herein.
4. Miscellaneous.
--------------
(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes and replaces all prior negotiations, proposed
agreements and agreements, written or oral. The parties hereto
further agree that any amendment or modification to this
Agreement must be in writing, signed by both parties.
(b) This Agreement shall be binding up and inure to the benefit of
the parties hereto and their respective successors and assigns.
(c) This Agreement has been entered into in the State of California
and its validity, construction, interpretation and legal effect
shall be governed by the laws of the State of California
applicable to contracts entered into and performed entirely
within the State of California.
(d) Should any litigation be commenced between the parties hereto or
their representatives or should any party institute any
proceeding in a bankruptcy or similar court which has
jurisdiction over any other party hereto or any or all of his or
its property or assets concerning any provision of this Agreement
or the rights and duties of any person or entity in relation
thereto, the party or parties prevailing in such litigation shall
be entitled, in addition to such other relief as may be granted,
to a reasonable sum as and for his or its or their attorneys'
fees and court costs in such litigation which shall be determined
by the court in such proceeding or in a separate action brought
for that purposes.
(e) This Agreement may be executed in several counterparts, and all
so executed shall constitute one Agreement, binding on all
parties hereto, notwithstanding that all of the parties are not
signatories to the original or the same counterpart.
5
(f) Enforcement of this Agreement is also subject to Section 16.15 of
the Note and Warrant Purchase Agreement (Waiver of Right to Trial
by Jury).
6
IN WITNESS WHEREOF, the parties hereto have set forth
their hands as of the date first above written.
NEW LIFE HOLDINGS, LLC.,
by its managing member
By: /s/ EZRI NAMVAR
-----------------
PACIFIC PREMIER BANCORP, INC.
By: /s/ STEVEN R. GARDNER
---------------------
PACIFIC PREMIER BANK
By: /s/ STEVEN R. GARDNER
---------------------
7