Exhibit 10.1


 


TERMINATION AGREEMENT


 


This
Termination Agreement (this “Agreement”)
is entered into and made effective as of October 28, 2009 by and among FB
Bancorp, a California corporation (“FB Bancorp”),
First Business Bank, National Association, a national banking association (“First Business Bank”), 1st Pacific
Bancorp, a California corporation (“1st Pacific Bancorp”),
and 1st Pacific Bank of California, a California state-chartered bank and the
wholly-owned subsidiary of 1st Pacific Bancorp (“1st Pacific
Bank”), with reference to the following:


 


RECITAL


 


WHEREAS,
FB Bancorp, First Business Bank, 1st Pacific Bancorp and 1st Pacific Bank are
parties to an Agreement and Plan of Merger, dated as of July 16, 2009 (the
“Merger Agreement”) and desire to
terminate the Merger Agreement on the terms and conditions set forth herein;


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth in
this Agreement, the parties agree as follows:


 


AGREEMENT


 


1.               Agreement
to Terminate.   FB
Bancorp, First Business Bank, 1st Pacific Bancorp and 1st Pacific Bank agree to
terminate the Merger Agreement by mutual agreement pursuant to Section 11.1.1
of the Merger Agreement, effective immediately. 
Notwithstanding anything herein to the contrary, the provisions of
Sections 11.2, 13.1, 13.2, 13.6, 13.9 and 13.10 of the Merger Agreement
and any other section of the Merger Agreement which, by its terms, relates
to post-termination rights or obligations, shall survive the termination of the
Merger Agreement and remain in full force.


 


2.               Release
of Claims. In consideration for its agreement to terminate
the Merger Agreement as set forth herein, each of FB Bancorp, First Business
Bank, 1st Pacific Bancorp and 1st Pacific Bank, on behalf of themselves, and
their respective officers, directors, employees, agents, representatives,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, hereby fully and forever
release each other party and their respective, officers, directors, employees,
agents, representatives, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
from, and agree not to sue concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that any of them may possess (other than claims for a
breach of an obligation under this Agreement) including but not limited to any
and all claims relating to, or arising from, the Merger Agreement.  FB Bancorp, First Business Bank, 1st Pacific
Bancorp and 1st Pacific Bank understand and agree that the release provided in
this Section 2  extends to all such
claims and/or potential claims, and that they hereby expressly waive all rights
with respect to all such claims
under California Civil Code section 1542, which provides as follows:


 


1

















 


“A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”


 


3.               Press
Releases.  Attached as Exhibit A
is the mutually agreed upon joint press release of the parties relating to the
termination of the Merger Agreement. Each of FB Bancorp, First Business Bank,
1st Pacific Bancorp and 1st Pacific Bank will mutually agree on the issuance of
any other press release or public statements in respect of this Agreement and
the Merger Agreement terminated hereby and shall not issue any such press
release or any public statement prior to such mutual agreement, except as may
be required by applicable law.


 


4.               Definitions.  Capitalized terms used herein and not
otherwise defined shall have the same meaning as set forth in the Merger
Agreement.


 


5.               Governing
Law; Venue.  This
Agreement shall be governed by the laws of California, without giving effect to
its principles of conflicts of laws. The parties hereto agree that any
disputes, claims, disagreements, lawsuits, actions or controversies of any type
or nature whatsoever that, directly or indirectly, arise from or relate to this
Agreement, including, without limitation, claims relating to the inducement,
construction or performance of this Agreement, shall be brought in the state
superior courts located in San Diego County, California or Federal district
courts located in San Diego County, California, and the parties hereto agree
not to challenge the selection of that venue in any such proceeding for any
reason, including, without limitation, on the grounds that such venue is an
inconvenient forum.


 


6.               Counterparts.  This Agreement may be executed in one or more
counterparts all of which shall be considered one and the same agreement. A
facsimile or other electronic copy of a signature page shall be deemed to
be an original signature page.


 


IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed on its behalf as of the date first above written.


 


	
   

  	
  FB
  BANCORP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nathan L. Rogge

  
	
   

  	
  Name:

  	
  Nathan
  L. Rogge

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FIRST
  BUSINESS BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nathan L. Rogge

  
	
   

  	
  Name:

  	
  Nathan
  L. Rogge

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  1ST
  PACIFIC BANCORP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald J. Carlson

  
	
   

  	
  Name:

  	
  Ronald
  J. Carlson

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  1ST
  PACIFIC BANK OF CALIFORNIA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald J. Carlson

  
	
   

  	
  Name:

  	
  Ronald
  J. Carlson

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  



 


2

















 


Exhibit A


 


Draft Press Release


 


October 28, 2009 — San Diego,
CA - First Business Bank, N.A. (FBBN - OTC Bulletin Board) and 1st Pacific
Bancorp (NASDAQ: FPBN) today announced the termination of the Agreement and
Plan of Merger dated July 16, 2009, and the proposed merger transaction
contemplated therein.  Nathan Rogge, President of First Business Bank,
stated that “today’s economic and regulatory environment presented
unanticipated complications that could not be overcome, given the structure of
the transaction.”  The parties have begun to explore alternative
transactions that could be mutually beneficial.


 


First Business Bank is exclusively
focused on serving the special needs of professionals and small- and
medium-sized enterprises. Established in 2001, First Business Bank is dedicated
to providing businesses and professionals with simple, fast and effective
solutions. Experienced bankers deliver highly tailored financial solutions
while providing customers with educational and networking opportunities. For
more information, contact First Business Bank, N.A. at (858) 847-4780,
12265 El Camino Real, Suite 100, San Diego, CA 92130, or visit
the company’s website at www.fbbank.com.


 


1st Pacific Bank of California is a
San Diego community business bank. The bank offers a full complement of
business products and services to meet the financial needs of professional
firms, small- to mid-sized businesses, their owners and the employees who work
there. For additional information about 1st Pacific Bank, visit the company’s
website at www.1stpacbank.com.


 


Contacts: Rumpasri Chicharoen, First
Business Bank 858-847-4780


Ronald J. Carlson, Chairman,
President and CEO, 1st Pacific Bank of California 858-875-2005


 


Forward-Looking
Statements


 


This release may contain
forward-looking statements, which are included in accordance with the “safe
harbor” provisions of the Private Securities Litigation Reform Act of 1995 and,
accordingly, the cautionary statements contained in 1st Pacific Bancorp’s
Annual Report on Form 10-K for the year ended Dec. 31, 2008 (See Item
I — Business, and Item 7 — Management’s Discussion and Analysis of Consolidated
Financial Condition and Results of Operations), and other filings with the
Securities and Exchange Commission or the Board of Governors of the Federal
Reserve System are incorporated herein by reference. These factors include, but
are not limited to: the effect of interest rate and currency exchange
fluctuations; competition in the financial services market for both deposits
and loans; the ability to efficiently incorporate acquisitions into current
operations; the ability of the two institutions to increase their customer
bases; the effect of regulatory and legislative action; and regional and
general economic conditions. Actual results and performance in future periods
may be materially different from any future results or performance suggested by
the forward-looking statements in this release. Such forward-looking statements
speak only as of the date of this release. First Business Bank and 1st Pacific
Bancorp expressly disclaim any obligation to update or revise any
forward-looking statements found herein to reflect any changes in their expectations
of results or any change in events.


 


3