8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) April 25, 2023

Bank of Marin Bancorp

(Exact name of Registrant as specified in its charter)

California	001-33572	20-8859754
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)		504 Redwood Blvd., Suite 100, Novato, CA	94947
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(Address of principal executive office)	(Zip Code)

Registrant’s telephone number, including area code:  (415) 763-4520

Not Applicable

(Former name or former address, if changes since last report)

Check the appropriate box below if the Form 8-K filing is to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
	☐ Written communications pursuant to Rule 425 under the Securities Act (17CFR 230.425)
	☒ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
	☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
	☐ Pre-commencement communications pursuant to Rule 13e-4(c)) under the Exchange Act (17 CFR 240.13e-4(c))		Securities registered pursuant to 12(b) of the Act:
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Title of each class	Trading Symbol	Name of each exchange on which registered
Common stock, no par value	BMRC	The Nasdaq Stock Market		Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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	Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ☐

Section 1 - Registrant’s Business and Operations

Item 1.01     Entry into a Material Definitive Agreement

Bank of Marin Bancorp (Nasdaq: BMRC) (the “Company”) announced April 26, 2023, that the Company and Shawn Devlin and Riley Gardner (Devlin and Gardner collectively, the “Kelly Trust Parties”) have amended that certain previously disclosed agreement dated May 10, 2021 (the “Agreement”), previously amended by Amendment Number One dated March 31, 2022 (collectively, the “Amended Agreement”). Under the Amendment Number Two (the “Amendment”), among other things, Sanjiv Sanghvi was confirmed as the continuing Kelly Trust Nominee (including as one of the Board’s nominees for the 2023 Annual Meeting of Shareholders), appointed to the Bank of Marin Board of Directors and seated on the Bank of Marin Asset/Liability Management Committee, and the “Restricted Period” was extended by approximately one year. The other terms and conditions of the Agreement generally were continued. The summary description of the Amendment in this paragraph is qualified in its entirety by reference to the full terms of the Amendment attached to this Report as Exhibit 10.1.

Important Additional Information And Where To Find It

The Company, its directors and certain of its executive officers are deemed to be participants in the solicitation of proxies from the Company’s shareholders in connection with the matters to be considered at the Company’s upcoming 2023 Annual Meeting of Shareholders. Information regarding the names of the Company’s directors and executive officers and their respective interests in the Company by security holdings or otherwise can be found in the Company’s proxy statement for its 2023 Annual Meeting of Shareholders. The proxy statement and all other documents filed with the SEC by the Company are available free of charge at the SEC’s website at www.sec.gov. On April 14, 2023, the Company filed a definitive proxy statement and proxy card with the SEC in connection with the solicitation of proxies from the Company’s shareholders for matters to be considered at the Company’s 2023 Annual Meeting of Shareholders. Additional information regarding the identity of participants, and their direct or indirect interests, by security holdings or otherwise, is set forth in the Company’s definitive proxy statement for its 2023 Annual Meeting, including the schedules and appendices thereto. INVESTORS AND SHAREHOLDERS ARE STRONGLY ENCOURAGED TO READ ANY SUCH PROXY STATEMENT AND THE ACCOMPANYING PROXY CARD AND OTHER DOCUMENTS FILED BY BANK OF MARIN BANCORP WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION. Shareholders will be able to obtain the proxy statement, any amendments or supplements to the proxy statement, the accompanying proxy card, and other documents filed by the Company with the SEC for no charge at the SEC’s website at www.sec.gov. Copies will also be available at no charge at the Investor Relations section of the Company’s corporate website at www.bankofmarin.com, or by writing to the Company’s Corporate Secretary at BANK OF MARIN BANCORP, 504 REDWOOD BLVD., SUITE 100, NOVATO, CA 94947.

Section 9 - Financial Statements and Exhibits

Item 9.01    Financial Statements and Exhibits

(d) Exhibits

Exhibit No.	Description
10.1	Amendment Number Two Dated April 25, 2023

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date:	April 26, 2023	BANK OF MARIN BANCORP
		By:	/s/ Tani Girton
			Tani Girton
			Executive Vice President
			and Chief Financial Officer

Document

Exhibit 10.1         Execution Version

AMENDMENT NUMBER TWO

TO AGREEMENT

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:

“Section 2.1    Board of Directors, Annual Meeting and Related Matters.

(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

(2)    solicit proxies for and vote in favor of the current Kelly Trust Nominee at the 2023 Annual Meeting.

(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.

[Signature pages follow]

IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment, or caused the same to be executed by its duly authorized representative, as of the date first above written.

BANK OF MARIN BANCORP
By:	/s/ Timothy D. Myers
Name:	Timothy D. Myers
Title:	President and CEO
KELLY TRUST PARTIES:
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/s/ Shawn Devlin
Shawn Devlin
/s/ Riley Gardner
Riley Gardner

EXHIBIT 1

RESOLUTIONS OF THE BOARD APPROVING THIS AMENDMENT

[Following this page]

RESOLUTIONS OF THE BOARD OF DIRECTORS

OF

BANK OF MARIN BANCORP

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:

1.    Amendment of Agreement with Shawn Devlin and Riley Gardner.

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.

________________________________

Krissy Meyer

Secretary

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