Amendment Number Two Dated April 25, 2023

This Amendment Number Two, dated and effective April 25, 2023 (the “Amendment”), amends that certain Agreement, dated May 10, 2021 (the “Agreement”), by and between Bank of Marin Bancorp, a California corporation (the “Company”), The Jon S. Kelly Administrative Trust UTD January 14, 2000 (the “Kelly Trust”), Shawn Devlin (“Ms. Devlin”) and Riley Gardner (“Mr. Gardner”). Capitalized terms used in this Amendment but not defined in this Amendment are defined as set forth in the Agreement.

 

WHEREAS, the Parties agreed to Amendment Number 1 to the Agreement with an effective date of March 31, 2022 (the Agreement and Amendment Number 1 hereinafter collectively referred to as the “Amended Agreement”); and

   

WHEREAS, provisions of the Amended Agreement will expire at the end of the Restricted Period and the Company’s 2023 Annual Meeting of Shareholders, and the Parties wish to provide for an extension of some such terms as set forth herein.

   

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:

    1.    Section 1.1(c) of the Amended Agreement is hereby amended to extend the “Restricted Period” by one year such that references to “2022 Annual Meeting” shall read “2023 Annual Meeting” and references to the “2023 Annual Meeting” shall read “2024 Annual Meeting”.

    2.    The Parties hereby reconfirm the representations and warranties made in Section 3.1 of the Amended Agreement, except that as to the Company, the reference to the Board resolutions shall be deemed to refer to the Board resolutions attached hereto as Exhibit 1.

    3.    Section 2.1 of the Agreement is hereby amended in its entirety to read as follows:

(a)    2023 Annual Meeting. The Company shall use all reasonable best efforts to cause the 2023 Annual Meeting to be held and the election of directors thereat to be conducted on May 23, 2023, and shall not delay or postpone such meeting date or election, unless a quorum is not obtained, in which case the 2023 Annual Meeting shall be held as promptly thereafter as practicable.

(b)    Board Size. Following the 2023 Annual Meeting and until the conclusion of the 2024 Annual Meeting, the Board shall take all necessary actions to maintain the size of the Board at twelve (12) directors (including the Kelly Trust Nominee); provided, however, the Board may take all required and appropriate action to increase the size of the Board as necessary to comply with California Corporations Code Section 301.3 and 301.4, but not to exceed thirteen (13).

(c)    Replacement Directors. If at any time during the Restricted Period any Kelly Trust Nominee refuses to serve, or is unable or unwilling to serve as

a director of the Company as a result of such Kelly Trust Nominee’s death, incapacity, or otherwise, then the Kelly Trust Parties shall be entitled to designate another individual as a replacement Kelly Trust Nominee subject to the consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned (any such replacement Kelly Trust Nominee, a “Replacement Kelly Trust Nominee”), and such Replacement Kelly Trust Nominee shall be deemed a Kelly Trust Nominee for all purposes of this Agreement; provided, however, that the Company’s objection to a proposed Replacement Kelly Trust Nominee shall be deemed reasonable only if, (i) such individual is an officer or director of a financial institution operating in any MSA in which the Company then currently operates a full service bank branch, or (ii) such individual does not meet all other criteria for board membership as established by the Board’s Nominating and Governance Committee applicable to all directors generally. In proposing an individual as a Replacement Kelly Trust Nominee pursuant to the immediately preceding sentence, the Kelly Trust Parties shall provide the Company with such information regarding such individual as would be required to nominate such individual as a director pursuant to Section 2.14 of Article 2 of the Company’s Bylaws. In the event of the death, resignation or retirement from the Board of any Kelly Trust Nominee during the Restricted Period, the Board shall, as promptly thereafter as practicable, cause such Kelly Trust Nominee to be replaced with a Replacement Kelly Trust Nominee.

(d)    Bank Board. The Company shall take all necessary actions during the Restricted Period to maintain the Kelly Trust Nominee or any Replacement Kelly Trust Nominee on both the Board and the Bank Board.

(e)    Committees of the Board. Concurrently with the execution of this Amendment, and throughout the Restricted Period, the Board shall ensure that a Kelly Trust Nominee or Replacement Kelly Trust Nominee shall be a member of at least each of the Compensation Committee and the Nominating & Governance Committee of the Board, and any corresponding or analogous committees of the Bank Board, and the Asset / Liability Management Committee of the Bank Board, and any corresponding or analogous committee of the Board, and the Company agrees to maintain such committee appointments during the Restricted Period; provided, however, that any such Kelly Trust Nominee or Replacement Kelly Trust Nominee meets any criteria for such position as required by Nasdaq rules or rules and regulations established by the SEC; provided further that the Company acknowledges and agrees that the Kelly Trust Nominee or Replacement Kelly Trust Nominee, as applicable, shall be an observer to the Executive Committee of the Board and any corresponding or analogous committee of the Bank Board, and shall (i) receive copies of all documents distributed to the members of such Executive Committee, including, without limitation, notice of all meetings of such Executive Committee and all materials prepared for consideration at any meeting of such Executive Committee on or after the date hereof contemporaneous with their distribution to the members of such Executive Committee and (ii) have the right to attend, but not vote, at all meetings of such Executive Committee during the Restricted Period (whether such meetings are held in person, telephonically or otherwise).

(f)    Re-Nomination of Kelly Trust Nominee. Provided the current Kelly Trust Nominee agrees to be nominated, the Company agrees that at the 2023 Annual Meeting, the Board will:

(1)    nominate the current Kelly Trust Nominee as director of the Company whose term shall expire at the Company’s 2024 Annual Meeting; and

(g)    Efforts. The Company shall use all reasonable best efforts to ensure that the current Kelly Trust Nominee is elected by the shareholders at the 2023 Annual Meeting; provided that such efforts shall be no less rigorous and be conducted in a manner no less favorable than the manner in which the Company supports its other nominees.

(h)    Role of Kelly Trust Nominees. Each of the Kelly Trust Nominees, upon election and/or appointment to the Board and the Bank Board, will be governed by the same protections and obligations regarding confidentiality, conflicts of interests, fiduciary duties, trading and disclosure policies and other governance guidelines (it being understood that such policies shall not restrict the activities of the Kelly Trust Parties) and shall have the same rights and benefits, including with respect to insurance, indemnification, compensation and fees, as are applicable to all independent directors of the Company, and shall otherwise receive the same materials provided to and be treated similarly to all other directors of the Board and the Bank Board; provided, however, the Kelly Trust Parties acknowledge and agree that any Kelly Trust Nominee or Replacement Kelly Trust Nominee may be excluded from only those certain portions of any Board or Bank Board meeting or discussions primarily focused on River City Bank or Kelly Trust Parties.

(i)    Stock Ownership. If at any time during the Restricted Period the Kelly Trust Parties fail to collectively beneficially own at least 3% of the issued and outstanding shares of the Company, then the terms and conditions of Section 2.1 (b), (c), (d), and (e) shall cease to have any force or effect and the Kelly Trust Parties shall have no rights or privileges to enforce the terms of Section 2.1 (b), (c), (d), and (e).

4.    Each party shall be responsible for its own fees and expenses incurred in connection with this Amendment and all matters related to this Amendment or the Amended Agreement, except that the Company will promptly reimburse the Kelly Trust Parties for their reasonable and documented out-of-pocket fees, costs and expenses (including attorneys’ fees) incurred in connection with this Amendment, and/or the 2023 Annual Meeting, up to a maximum aggregate of $15,000.

    5.    Except as expressly set forth in this Amendment all other terms of the Agreement shall remain in full force and effect.

6.    This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of California.

7.    This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A facsimile or electronic (in “.pdf” format) copy of any executed counterpart hereof shall have the same legal effect as the original.

    The undersigned certifies that she is the Secretary of Bank of Marin Bancorp (the “Company”) and that, as such, she is authorized to execute this Certificate on its behalf and further certifies that the Board of Directors of the Company, duly adopted the following resolutions at a special meeting of the Board of Directors called and held on April 21, 2023, at which a quorum was present and acting throughout; and such resolutions are in full force and effect on and as of the date hereof, not having been amended, altered or repealed:

WHEREAS, the Company previously entered into that certain Agreement, dated May 10, 2021 (the “Agreement”), with The Jon S. Kelly Administrative Trust UTD January 14, 2000 (the “Kelly Trust”), Shawn Devlin (“Ms. Devlin”) and Riley Gardner (“Mr. Gardner”) (Ms. Devlin and Mr. Gardner collectively referred to herein as the “Kelly Trust Parties”);

 

WHEREAS, the Parties agreed to Amendment Number 1 to the Agreement with an effective date of March 31, 2022 (the Agreement and Amendment Number 1 hereinafter collectively referred to as the “Amended Agreement”);

WHEREAS, various provisions of the Amended Agreement will expire at the end of the Restricted Period and the Company’s 2023 Annual Meeting of Shareholders, and an Amendment Number Two to the Amended Agreement has been proposed to provide for, among other things, the extension of the Restricted Period, and a form of such amendment has been presented to the Board in the form attached hereto as Exhibit A (the “Amendment”); and

WHEREAS, the Company believes it is in its best interest to enter into the Amendment.

    RESOLVED, that the Amendment between the Company and the Kelly Trust Parties in the form attached hereto is hereby approved and adopted.

    FURTHER RESOLVED, that the proper officers of the Company be, and they are hereby, authorized and directed to execute the Amendment and take whatever further action is required to give full force and effect to the foregoing resolution.

IN WITNESS WHEREOF, the undersigned has hereunto set her hand and affixed the seal of Bank of Marin Bancorp, this ___ day of April, 2023.