<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. ____)
The San Francisco Company
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
064772106
(CUSIP Number)
<TABLE>
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<S> <C> <C>
David M. Niebauer, Esq. J. Michael Shepherd, Esq. John C. Murphy, Jr., Esq.
Graham & James LLP Brobeck, Phleger & Harrison LLP Cleary, Gottlieb, Steen & Hamilton
One Maritime Plaza One Market, Spear Street Tower 2000 Pennsylvania Avenue, N.W.
San Francisco, CA 94114 San Francisco, CA 94105 Washington, D.C. 20006-1801
(415) 954-0200 (415) 442-0900 (202) 974-1500
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</TABLE>
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 6, 1999
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss. 240.13d- 1(e), 240.13d-1(f) or 240.13d-
1(g), check the following box: [ ]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See ss.240.13d-7 for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
<PAGE>
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
2
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CUSIP NO. 064772106 13D PAGE 1 OF 3 PAGES
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1. NAME OF REPORTING PERSONS/I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
Mr. Robb Evans
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
OO
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF 7. SOLE VOTING POWER
SHARES 31,027,302
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BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
-------------------------------------------------------------
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
-------------------------------------------------------------
PERSON 10. SHARED DISPOSITIVE POWER
WITH 31,027,302(1)
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,027,302(1)
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97.8%
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14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
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3
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(1) As described in Items 4 and 5, pursuant to an order of the Board
of Governors of the Federal Reserve System (the "Order") and a Voting Trust
Agreement, among Mr. Robb Evans, PT Gunung Agung and Mr. Putra Masagung (the
"Voting Trust Agreement"), each dated November 30, 1998, all of the shares
beneficially owned by Mr. Evans have been deposited into a voting trust, of
which Mr. Evans is the trustee. Mr. Evans' ability to exercise certain
stockholders rights, including with respect to the disposition of the shares
beneficially owned by Mr. Evans, are subject to the terms of the Order and the
Voting Trust Agreement. Mr. Evans has sole voting power with respect to the
shares beneficially owned by him, provided that Mr. Evans shall not vote to
alter the articles of incorporation, bylaws, management or business plans of The
San Francisco Company without prior approval of the Board of Governors of the
Federal Reserve System and the California Department of Financial Institutions
and prior notice to PT Gunung Agung and Mr. Putra Masagung. See Items 4 and 5.
4
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CUSIP NO. 064772106 13D PAGE 2 OF 3 PAGES
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1. NAME OF REPORTING PERSONS/I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
PT Gunung Agung ("PTGA")
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
BK
WC
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Indonesia
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NUMBER OF 7. SOLE VOTING POWER
SHARES 0
-------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
-------------------------------------------------------------
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
-------------------------------------------------------------
PERSON 10. SHARED DISPOSITIVE POWER
WITH 16,600,845(2)
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,600,845(2)
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.3%
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14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
HC
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5
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(2) As described in Item 4 and Item 5, pursuant to the Order and the
Voting Trust Agreement, all of the shares beneficially owned by PTGA have been
deposited into a voting trust. PTGA's ability to exercise certain stockholder
rights, including with respect to the disposition of all of the shares
beneficially owned by PTGA, are restricted as a result of the Order and are
subject to the terms of the Voting Trust Agreement. PTGA does not have any
voting power with respect to the shares beneficially owned by it, but its
approval is required before the trustee may sell its shares. See Items 4 and 5.
6
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CUSIP NO. 064772106 13D PAGE 3 OF 3 PAGES
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1. NAME OF REPORTING PERSONS/I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
Mr. Putra Masagung
S.S. No. ###-##-####
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (SEE INSTRUCTIONS)
PF
BK
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Indonesia
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NUMBER OF 7. SOLE VOTING POWER
SHARES 0
-------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
-------------------------------------------------------------
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
-------------------------------------------------------------
PERSON 10. SHARED DISPOSITIVE POWER
WITH 14,426,457(3)
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,426,457(3)
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.5%
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14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
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7
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(2) As described in Item 4 and Item 5, pursuant to the Order and the
Voting Trust Agreement, all of the shares beneficially owned by Mr. Masagung
have been deposited into a voting trust. Mr. Masagung's ability to exercise
certain stockholder rights, including with respect to the disposition of all of
the shares beneficially owned by Mr. Masagung, are restricted as a result of the
Order and are subject to the terms of the Voting Trust Agreement. Mr. Masagung
does not have any voting power with resect to the shares beneficially owned by
him, but his approval is required before the trustee may sell his shares. See
Items 4 and 5.
8
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This Schedule 13D of Mr. Robb Evans also amends and supplements the
Schedule 13D filed on November 10, 1998(the "PTGA Schedule 13D") of PT Gunung
Agung ("PTGA") and the Schedule 13D filed on July 30, 1992, as amended on
February 16, 1994, July 19, 1994 and February 23, 1998 (as amended, the
"Masagung Schedule 13D"), of Mr. Putra Masagung, with respect to Class A Common
Stock of The San Francisco Company.
Item 1. Security and Issuer.
This statement relates to shares of Class A Common Stock of The San
Francisco Company ("Issuer"). The address of Issuer's principal executive
offices is 550 Montgomery Street, San Francisco, California 94111.
Item 2. Identity and Background.
a) Mr. Robb Evans
b) Robb Evans & Associates
1450 Sheldon Street
Sun Valley, CA 91352-1121
c) Trustee
d) Mr. Evans has not been convicted in any criminal proceedings.
e) Mr. Evans has not been, and is not, subject to a judgement, decree or final
order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
f) United States of America.
Except as set forth in Annex B with respect to PTGA, there is no change
regarding the identity and background information previously provided by PTGA
in the PTGA Schedule 13D and Mr. Masagung in the Masagung Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
As described in Items 4 and 5, pursuant to an order of the Board of
Governors of the Federal Reserve System and a Voting Trust Agreement, dated as
of November 30, 1998 (the "Voting Trust Agreement"), among Mr. Evans, PTGA and
Mr. Masagung, effective January 6, 1999, Mr. Masagung transferred record
ownership of 31,027,302 shares of Class A Common Stock of Issuer (the "Shares"),
of which 16,600,845 shares of Class A Common Stock of Issuer are beneficially
owned by PTGA (the "PTGA Shares") and 14,426,457 shares of Class A Common Stock
of Issuer are beneficially owned by Mr. Masagung (the "Masagung Shares"), to Mr.
Evans, as trustee under the Voting Trust Agreement. Pursuant to the Voting
Trust Agreement, a voting trust certificate was issued and delivered to each of
PTGA and Mr. Masagung.
Item 4. Purpose of Transaction.
(a)-(j) The purpose of the transaction is to effect the acquisition by Mr. Evans
of voting control of the Shares pursuant to (i) the notice of intent not to
disapprove such acquisition of voting control, which was issued on January 4,
1999, by the Federal Reserve Bank of San Francisco acting pursuant to authority
delegated by the Board of Governors of the Federal Reserve System (the "Board");
and (ii) the Approval to Acquire Control of Bank of San
9
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Francisco (the "Bank")/1/, which Approval was issued by the California
Department of Financial Institutions (the "CDFI") on October 8, 1998
(collectively, the "Regulatory Approvals").
Mr. Evans has acquired voting control of the Shares by virtue of his
appointment as trustee (the "Trustee") of a voting trust into which the Shares
were deposited on January 6, 1999. The Trustee is the record holder of the
Shares. The voting trust was created (subject to receipt of the Regulatory
Approvals) by the Voting Trust Agreement by and among the Trustee, Mr. Masagung,
and PTGA. Entry by Mr. Masagung and PTGA into the Voting Trust Agreement was
mandated by the Order of Prohibition, Order to Cease and Desist and Order of
Assessment of Civil Money Penalties Issued Upon Consent (the "Order") issued
against Mr. Masagung and PTGA by the Board on November 30, 1998.
The Order resolves allegations that Mr. Masagung and PTGA violated the Bank
Holding Company Act of 1956, as amended, in connection with PTGA's acquisition
of beneficial ownership of the PTGA Shares. Masagung was the record holder of
the PTGA Shares and the Masagung Shares. The Order is by way of settlement only
and Mr. Masagung and PTGA did not admit or deny any wrongdoing or liability with
respect to any allegations or claims.
The Voting Trust Agreement mandates the sale of the Shares and the voting
trust shall continue in effect until the earlier of (a) the sale or disposition
by merger or otherwise by the Trustee of the Shares and the remittance to Mr.
Masagung and PTGA (hereinafter, the "Grantors") of the proceeds thereof in
accordance with the terms of the Voting Trust Agreement and (b) July 4, 2002
(subject to extension with the prior approval of the Board and the CDFI).
The foregoing description of certain material terms of the Order and the
Voting Trust Agreement is qualified in its entirety by reference to the copies
of the Order and Voting Trust Agreement attached hereto as Exhibit 1 and Exhibit
2, respectively, and incorporated herein by reference.
The requirement that the Trustee sell the Shares is intended to result in
the disposition by PTGA of the PTGA Shares and by Mr. Masagung of the Masagung
Shares and may, depending on the transaction negotiated by the Trustee, result
in (1) an extraordinary corporate transaction such as a merger, reorganization
or liquidation involving the Issuer or its subsidiaries, (2) a sale or transfer
of a material amount of assets of the Issuer, (3) a change in the present board
of directors or management of Issuer, (4) a material change in the present
capitalization or dividend policy of the Issuer, (5) other material changes in
the Issuer's business or corporate structure, (6) changes in the Issuer's
charter, bylaws or instruments corresponding thereto or actions which may impede
the acquisition of control of the Issuer by any person, (7) a class of
securities of the Issuer to be delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association, or (8) a class of equity securities
of the
_________________
/1/ The Bank is a direct wholly-owned subsidiary of the Issuer (and is also
the sole subsidiary of the Issuer).
10
<PAGE>
Issuer to become eligible for termination of registration pursuant to Section
12(g)(4) of the Act. See Item 5.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Evans beneficially owns 31,027,302 shares (or approximately 97.8%) of
the Issuer's Class A Common Stock. PTGA beneficially owns 16,600,845 shares (or
approximately 52.3%) of the Issuer's Class A Common Stock. Mr. Masagung
beneficially owns 14,426,457 shares (or approximately 45.5%) of the Issuer's
Class A Common Stock.
(b) - (c) As described in Items 3 and 4, the Shares were deposited with the
Trustee, pursuant to the Voting Trust Agreement, on January 6, 1999. Pursuant
to the Voting Trust Agreement, the Trustee, acting in his absolute discretion,
shall have the exclusive right to vote the Shares, provided that the Trustee
shall not alter the articles of incorporation, bylaws, management or business
plans of the Issuer in any material respect without prior approval of the Board
and the CDFI and prior notice to the Grantors. The Trustee is required to
nominate and to vote to elect members of the Board of Directors of the Issuer in
a manner wholly independent of any direct or indirect influence of the Grantors
or any of their affiliates.
(d) Pursuant to the Voting Trust Agreement, the Trustee shall receive and hold
all dividends and other distributions declared and paid on the Shares and shall,
unless otherwise instructed by the Board or the CDFI, distribute to the Grantors
all dividends and other distributions of property (except securities of the
Issuer or its bank subsidiary that have voting rights on any matter, which shall
be held by the Trustee pursuant to the terms of the voting trust). Pursuant to
the Order and the Voting Trust Agreement, the Trustee must pay a civil penalty
on behalf of PTGA to the Board, out of the proceeds from any sale of the PTGA
Shares, equal to $200,000 plus any profit resulting from its acquisition of
control of the Issuer. Mr. Masagung has paid a $250,000 civil penalty and must
pay a civil penalty to the Board equal to any profit resulting from his
acquisition of control of the Issuer. For purposes of the Order, "profit" for
PTGA and Mr. Masagung means the amount, if any, by which the proceeds from the
sale of the PTGA Shares and the Masagung Shares, less the costs of sale incurred
in the ordinary course, exceed $32.05 million and $23.5 million, respectively.
The foregoing description of certain material terms of the Order and the
Voting Trust Agreement is qualified in its entirety by reference to the copies
of the Order and Voting Trust Agreement attached hereto as Exhibit 1 and Exhibit
---------- -------
2, respectively, and incorporated herein by reference.
- -
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
PTGA and Mr. Masagung have agreed to reimburse Mr. Evans for his expenses
as trustee and to pay him a fee for his services as trustee, which will depend
upon the price for which the Shares are sold. Except as set forth herein and as
described in Items 4 and 5, Mr. Evans has no contract, arrangement,
understanding or relationship with PTGA or Mr. Masagung or any other person
regarding the PTGA Shares or the Masagung Shares, including but not limited to
transfer or voting of any of such shares, finder's fees, joint
11
<PAGE>
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
1. Order of Prohibition, Order to Cease and Desist and Order of Assessment of
Civil Money Penalties Issued Upon Consent, dated November 30, 1998.
2. Voting Trust Agreement, dated November 30, 1998.
12
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
January 14, 1999
ROBB EVANS
/s/ ROBB EVANS
--------------
13
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
January 14, 1999
PT GUNUNG AGUNG
/s/ Lego Nirwhono
---------------------------
Name: Lego Nirwhono
Title: Chairman of the Board
14
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
January 14, 1999
PUTRA MASAGUNG
/s/ PUTRA MASAGUNG
------------------
15
<PAGE>
ANNEX A
-------
JOINT FILING AGREEMENT
--------------------
In accordance with Rule 13d-1 under the Securities Exchange Act of 1934, as
amended, the undersigned hereby agree to the joint filing with each other of the
attached statement on Schedule 13D and all amendments to such statement and that
such statement and each amendment to such statement is made on behalf of each of
them.
IN WITNESS WHEREOF, the undersigned hereby execute this agreement as of
this 14th day of January, 1999.
/s/ Robb Evans
---------------------------------
By: Robb Evans
/s/ Putra Masagung
---------------------------------
By: Putra Masagung
PT GUNUNG AGUNG
By: /s/ Lego Nirwhono
-----------------------------
Name: Lego Nirwhono
Title: Chairman of the Board
16
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ANNEX B
Identity and Background
-----------------------
The following table sets forth the names, addresses and principal
occupations of the executive officers and directors of PT Gunung Agung. The
principal business address of each such director and executive officer is the
address of PT Gunung Agung, 55 M.H. Thamrin Street, Jakarta, Indonesia. Each of
such persons is a citizen of Indonesia. Items 2(d) and 2(e) of Schedule 13D are
not applicable with respect to any of such persons.
Name Occupation
Lego Nirwhono Chairman of the Board of Directors of PTGA
Tanto Sudiro President Director of PTGA
Haji Muhammad Uncu Natsir Member of the Board of Directors of PTGA
Auzy Fauzi Fadlan Director of PTGA
17
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<TABLE>
<CAPTION>
Exhibit
Number Description
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<C> <S>
1. Order of Prohibition, Order to Cease and Desist and Order of
Assessment of Civil Money Penalties Issued Upon Consent, dated
November 30, 1998.
2. Voting Trust Agreement, dated November 30, 1998.
</TABLE>
18
<PAGE>
UNITED STATES OF AMERICA
BEFORE THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C.
- ---------------------------------------
)
In the Matter of )
)
PUTRA MASAGUNG, ) Docket Nos. 98-023-E-I
) 98-023-B-I
An Institution-Affiliated Party of ) 98-023-CMP-I
The San Francisco Company, ) 98-023-B-FB
San Francisco, California, ) 98-023-CMP-FB
)
and )
)
P.T. GUNUNG AGUNG, LTD CORPORATION ) Order of Prohibition, Order to Cease
) and Desist and Order of Assessment of
Jakarta, Indonesia ) Civil Money Penalties Issued Upon
) Consent
- ---------------------------------------
WHEREAS, pursuant to sections 8(b) and 8(e) of the Federal
Deposit Insurance Act, as amended (the "FDI Act") (12 U.S.C.
ss.ss. 1818(b) and 1818(e)), and section 8(b) of the Bank Holding
Company Act of 1956, as amended (the "BHC Act") (12 U.S.C. ss.
1847 (b)), the Board of Governors of the Federal Reserve System
(the "Board of Governors") issues this combined Order to Cease
and Desist and Order of Assessment of Civil Money Penalties
against Putra Masagung ("Masagung") and P.T. Gunung Agung, Ltd.
Corporation ("GA"), Jakarta, Indonesia, and Order of Prohibition
(the "Order") against Masagung;
WHEREAS, this Order resolves allegations that Masagung and
GA violated the BHC Act (12 U.S.C. 1841, et seq.), in connection
with GA's acquisition of beneficial ownership of shares of The
San Francisco Company, San Francisco, California (the "Company");
<PAGE>
WHEREAS, the Company is a registered bank holding company
under the BHC Act and owns all of the stock of the Bank of San
Francisco (the "Bank"), a state chartered non-member bank;
WHEREAS, Masagung is an institution-affiliated party of the
Company, as defined in sections 3(u) and 8(b)(3) of the FDI Act
(12 U.S.C. ss.ss. 1813(u) and 1818(b)(3));
WHEREAS, this Order is by way of settlement only with no
adjudication of or finding on any issues of fact or law, and
Masagung and GA, by executing this Order, do not admit or deny
any wrongdoing or liability with respect to any allegations or
claims;
WHEREAS, on October 5, 1998, the board of directors of GA
adopted a resolution authorizing and directing Mr. Lego Nirwhono
to enter into this Order on behalf of GA and consenting to the
issuance of this Order by the Board of Governors and to GA's
compliance with each and every provision that pertains to GA;
WHEREAS, by affixing his signature hereunder, Masagung has
consented to the issuance of this Order by the Board of Governors
and to Masagung's compliance with each and every provision that
pertains to Masagung; and
WHEREAS, GA and Masagung have waived any and all rights
pursuant to 12 U.S.C. ss. 1818, 12 C.F.R. Part 263, or otherwise:
(a) to a hearing for the purpose of taking evidence with respect
to any matter implied or set forth in this Order; (b) to obtain
judicial review of this Order; and (c) to challenge or contest in
any manner the basis, issuance, validity, effectiveness,
collectibility or enforceability of this Order or any provision
hereof.
NOW, THEREFORE, before the taking of any testimony of,
adjudication of or finding on any issue of fact or law herein,
and without this Order constituting an admission
2
<PAGE>
of any allegation made or implied by the Board of Governors in
connection with this proceeding and pursuant to the aforesaid
resolution:
IT IS HEREBY ORDERED, pursuant to sections 8(b) and 8(e) of
the FDI Act and section 8(b) of the BHC Act:
1. In the absence of prior written approval by the Board of
Governors, and by any other federal banking agency where
necessary pursuant to section 8(e)(7)(B) of the FDI Act (12
U.S.C. ss. 1818(e)(7)(B)), Masagung is hereby prohibited:
(a) from participating in the conduct of the affairs of any
bank holding company, any insured depository institution or any
other institution specified in section 8(e)(7)(A) of the FDI Act
(12 U.S.C. ss. 1818(e)(7)(A));
(b) from soliciting, procuring, transferring, attempting to
transfer, voting or attempting to vote any proxy, consent, or
authorization with respect to any voting rights in any
institution described in section 8(e)(7)(A) of the FDI Act (12
U.S.C. ss. 1818(e)(7)(A));
(c) from violating any voting agreement previously approved
by the appropriate Federal banking agency; or
(d) from voting for a director, or from serving or
acting as an institution-affiliated party as defined in section
3(u) of the FDI Act (12 U.S.C. ss. 1813(u)), including serving as
an officer, director, or employee.
2. Masagung and GA shall enter into the voting trust
agreement (the "Voting Trust Agreement") that is attached hereto
within ten (10) days of the date of this Order, and further:
3
<PAGE>
(a) all securities, voting or nonvoting, of the Company in
which Masagung or GA or any affiliate of Masagung or GA now has
any interest, beneficial or otherwise, shall be placed into a
voting trust pursuant to the Voting Trust Agreement;
(b) Masagung and GA shall on or before their execution of
this Order propose a voting trustee (the "Trustee") acceptable to
the Board of Governors;
(c) Masagung and GA shall use their reasonable best efforts
to ensure that the Trustee files a notice under the Change in
Bank Control Act and state law, if required, with the appropriate
regulatory authorities;
(d) Masagung and GA shall take no action or omit to take any
action that would result in a breach of any provision of the
Voting Trust Agreement entered into pursuant to this Order; and
(e) any modification to or extension of the Voting Trust
Agreement must receive the prior written approval of the Board of
Governors.
3. Masagung and GA shall not, directly or indirectly, engage
in any violation of the BHC Act.
4. Masagung shall pay a civil money penalty in the sum of
$250,000, which shall be remitted in full at the time Masagung
executes this Order.
5. Masagung shall also pay as a civil money penalty any
profit resulting from his acquisition and control of the Company.
For the purposes of this Order, Masagung's profit means the
amount, if any, by which the proceeds from the sale of all of
Masagung's securities in the Company, less the costs of sale
incurred in the ordinary course, exceed $23.5 million. The
penalty resulting from any such profit shall be remitted to the
Board of Governors by Masagung
4
<PAGE>
within five (5) days of the consummation of the sale or other
disposition of Masagung's securities in the Company.
6. GA shall pay a civil money penalty in the sum of
$200,000.
7. GA shall also pay as a civil money penalty any profit
resulting from its acquisition and control of the Company. For
the purposes of this Order, GA's profit means the amount, if any,
by which the proceeds from the sale of all of GA's securities in
the Company, less the costs of sale incurred in the ordinary
course, exceed $32.05 million.
8. Given GA's current financial and liquidity condition, the
full amount of GA's penalty payable from paragraphs 6 and 7
above, shall be paid by the Trustee, pursuant to paragraph 9(e)
of the Voting Trust Agreement, out of the proceeds received from
the sale of GA's securities in the Company. GA shall use its
reasonable best efforts to ensure that the Trustee pays the full
amount of GA's penalty to the Board of Governors in accordance
with the provisions of the Voting Trust Agreement.
9. No portion of the civil money penalties required by this
Order shall be, directly or indirectly, paid, advanced,
reimbursed or otherwise funded by the Company or the Bank.
10. The civil money penalties agreed to be paid pursuant to
this Order shall be made payable to the "Board of Governors of
the Federal Reserve System" and forwarded, with an executed copy
of this Order, to Jennifer J. Johnson, Secretary of the Board,
Board of Governors of the Federal Reserve System, Washington, DC
20551, who shall make remittance to the Treasury of the United
States as required by statute.
11. For purposes of this Order, the Board of Governors
delegates to the General Counsel the authority to grant the
approvals required by the Board of Governors pursuant to the
provisions of this Order.
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<PAGE>
12. All communications regarding this Order shall be sent
to:
With regard to the Board of Governors:
(a) J. Virgil Mattingly, Jr., Esq.
General Counsel
Board of Governors of the Federal Reserve System
20th & C Streets, N.W.
Washington, DC 20551
With regard to Masagung:
(b) Mr. Putra Masagung
c/o Guthrie GTS Limited
115 Amoy Street
No. 02-00
Singapore 069935
Telecopier 65-224-9211
with a copy to:
Nicholas Unkovic, Esq.
Graham & James LLP
One Maritime Plaza
Suite 300
San Francisco CA 94111-3492
With regard to GA:
(c) PT Gunung Agung
Attn: Mr. Lego Nirwhono
JL.MH. Thamrin
No.55 Lantai 5
Jakarta 10350, Indonesia
Telecopier: 6221-230-1285
with a copy to:
John C. Murphy, Jr., Esq.
Cleary, Gottlieb, Steen & Hamilton
2000 Pennsylvania Avenue, N.W.
Washington, DC 20001-1801
6
<PAGE>
13. Each provision of this Order shall remain effective and
enforceable until stayed, modified, terminated or suspended by
the Board of Governors.
14. The provisions of this Order shall not bar, estop or
otherwise prevent the Board of Governors or any other federal or
state agency or department from taking any other action affecting
Masagung and GA, provided, however, the Board of Governors shall
not take any further action against Masagung, GA, and GA's parent
companies, PT Kosgoro and PT Trimuda Jaya Perdana, based upon any
information presently known to the Board of Governors concerning
the matters addressed in this Order.
By order of the Board of Governors of the Federal Reserve
System, this 30th day of November, 1998.
___________________________________
Putra Masagung
P.T. Gunung Agung, LTD Corporation
By: ________________________________
BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM
___________________________________
Jennifer J. Johnson
Secretary of the Board
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<PAGE>
Voting Trust Agreement
This Voting Trust Agreement is entered into as of 11/30,
1998, by and among Putra Masagung, an individual resident of
Singapore ("Mr. Masagung"), PT Gunung Agung, a limited liability
corporation established under the laws of the Republic of
Indonesia ("GA") (each of Mr. Masagung and GA being a "Grantor"
and, collectively, the "Grantors") and Robb Evans, an individual
resident of California (the "Trustee").
WHEREAS, pursuant to approvals originally dated July 13,
1992, of the Board of Governors of the Federal Reserve System
(the "Board") and the Superintendent of Banks of the State of
California, Mr. Masagung is the record owner of 31,027,302 shares
of the Class A Common Stock of The San Francisco Company, a
Delaware Corporation ("BHC"), which itself is the owner of all of
the issued and outstanding stock of the Bank of San Francisco, a
California banking corporation ("Bank");
WHEREAS, Mr. Masagung is the record and beneficial owner of
14,426,456 shares of the Class A Common Stock of BHC,
constituting approximately 45% of the issued and outstanding
shares of the Class A Common Stock of BHC (the "Masagung
Shares");
WHEREAS, GA is the beneficial, but not the record, owner of
16,600,846 shares of the Class A Common Stock of BHC held of
record by Mr. Masagung, constituting approximately 52% of the
issued and outstanding shares of the Class A Common Stock of BHC
(the "GA Shares" and, collectively with the Masagung Shares, the
"Shares");
WHEREAS, in order to resolve allegations that GA and
Masagung violated the Bank Holding Company Act of 1956 (the
"BHCA") or the California Financial Code, as amended (the
"Financial Code") in connection with the acquisition of
beneficial ownership of BHC shares by GA, but without admitting
or denying any wrongdoing or liability with respect to any
allegations or claims, the Grantors have agreed to place the
Shares into the voting trust created by this Voting Trust
Agreement;
WHEREAS, the Trustee has consented to act as and has been
appointed as the Trustee hereunder, effective upon the date of
this Voting Trust Agreement and after approval thereof, and after
any required regulatory approval of any change of control of BHC
or Bank, by the Grantors, the Board, the California Department of
Financial Institutions ("CDFI") and the Federal Deposit Insurance
Corporation ("FDIC");
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration it is
agreed as follows:
1. Creation and Purpose of Voting Trust.
(a) Subject to the terms and conditions hereof, a voting
trust with respect to the Shares is hereby created and
established in accordance with Section 218 of the Delaware
General Corporation Law, for the purposes described above. The
voting trust created hereby shall
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become effective upon the execution and delivery of this Voting
Trust Agreement and the receipt of all required regulatory
approvals (the "Effective Date"). A copy of this Voting Trust
Agreement has been filed with the registered office of BHC in
Delaware at CT Corporation System, 1209 Orange Street,
Wilmington, Delaware 19801, as required by such Section.
(b) The Trustee accepts the trust created by this Voting
Trust Agreement, and agrees to serve as trustee hereunder,
subject to the terms and conditions hereof with the express
limitation that the Trustee shall have no power or authority to
offer, sell or encumber the Shares or Other Voting Securities (as
hereinafter defined), if any, except as expressly provided in
Section 9 hereof.
(c) On or within 5 business days following the Effective
Date, Masagung, on behalf of the Grantors, shall deposit all of
the Shares with the Trustee, duly endorsed for transfer to the
Trustee; and promptly thereafter, (1) the Trustee shall surrender
the certificates for the Shares to BHC or its transfer agent for
cancellation, and new stock certificates thereof shall promptly
be issued to and registered in the name of the Trustee, as
trustee under this Voting Trust Agreement with each such stock
certificate bearing a legend to the effect that it is subject to
this Voting Trust Agreement; and (2) the Trustee shall issue and
deliver to Mr. Masagung and GA, respectively, Voting Trust
Certificates, substantially in the form set fort in Section 2
hereof, in respect of the Masagung Shares and the GA Shares
deposited with the Trustee.
(d) Mr. Masagung and GA shall be the beneficiaries of the
trust created by this Voting Trust Agreement, with respect to the
Masagung Shares and the GA Shares, respectively.
2. Voting Trust Certificate. The Voting Trust Certificate to
be issued and delivered to each Grantor shall be in substantially
the following form, the terms of which are herein incorporated by
reference:
"VOTING TRUST CERTIFICATE
Number VTC ___________________ Shares
THIS VOTING TRUST CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THE VOTING TRUST AGREEMENT DATED AS OF
___________,1998 BETWEEN PUTRA MASAGUNG, P.T. GUNUNG AGUNG, AND
________________, AS TRUSTEE, A COPY OF WHICH IS ON FILE AT THE
OFFICE OF THE SAN FRANCISCO COMPANY. SUCH COPY IS OPEN TO
INSPECTION DAILY DURING BUSINESS HOURS BY ANY STOCKHOLDER OF THE
SAN FRANCISCO COMPANY OR ANY BENEFICIARY OF THE VOTING TRUST
CREATED BY SUCH VOTING TRUST AGREEMENT.
Voting Trust Certificate
THIS CERTIFIES THAT ____________ is the beneficial owner of
__________ shares of the Class A Common Stock of the San
Francisco Company, a Delaware corporation (hereinafter "BHC"),
deposited with the undersigned Trustee pursuant to a Voting Trust
2
<PAGE>
Agreement dated as of _________, 1998, by and among Putra
Masagung, P.T. Gunung Agung and Robb Evans, as Trustee, a copy of
which Voting Trust Agreement is on file in the office of BHC at
550 Montgomery Street, San Francisco, California, and in the
registered office BHC at CT Corporation System, 1209 Orange
Street, Wilmington, Delaware 19801. The holder of this
Certificate will be entitled to receive payments equal to any and
all cash dividends, liquidating distributions or cash sales
proceeds collected by the Trustee with respect to such number of
shares, and, upon the termination of the Voting Trust Agreement,
to delivery of the proceeds received from the sale of such
shares, all as provided by the Voting Trust Agreement. The holder
of this Certificate takes it subject to all the terms and
conditions of the aforesaid Voting Trust Agreement and by
acceptance of this Certificate acknowledges that receipt of the
Certificate is for investment purposes and not with a view to
distribution.
IN WITNESS WHEREOF, the Trustee has signed this Certificate
on __________, 19___.
___________________________________
Trustee
3. Maintenance of Records; Replacement of Voting Trust
Certificates.
(a) The Trustee shall keep a list of the shares deposited
with him, and shall also keep a record of the Voting Trust
Certificates issued by him, which record shall contain the name
and address of each Grantor as the holder of a Voting Trust
Certificate, the number and class of shares represented by such
certificate and the date when each Grantor became the owner
thereof. Such list and record shall be open at all reasonable
times to the inspection of each Grantor.
(b) In case any Voting Trust Certificate shall become
mutilated, lost, stolen or destroyed, the Trustee may provide for
the issuance of a new Voting Trust Certificate in lieu of such
lost, stolen or destroyed Voting Trust Certificate or in exchange
for such mutilated Voting Trust Certificate, under such
conditions with respect to indemnity and otherwise as the
Trustee, in his reasonable discretion, may provide.
4. Dividends and Distributions. The Trustee shall receive
and hold, subject to the terms of this Voting Trust Agreement,
all dividends and other distributions declared and paid on the
Shares deposited with him hereunder. The Trustee shall distribute
to Mr. Masagung and to GA all dividends and other distributions
of property (except securities of BHC or Bank that have voting
rights on any matter, absolute or contingent ("Other Voting
Securities")) that are declared and paid on the Masagung Shares
and the GA Shares, respectively, or on Other Voting Securities
related thereto. Such distributions shall be made by the Trustee
as soon as practicable after the receipt of the dividends or
other distributions. Other Voting Securities shall be held by the
Trustee for the benefit of the respective Grantor subject to the
terms of this Voting Trust Agreement. The Board or the CDFI may
require at any time in the future that, from such time forward,
such dividends and other distributions shall not be distributed
to Grantors. In the event the Trustee is prohibited by the Board
or the CDFI from distributing any such dividends to a Grantor,
the Trustee shall deposit such dividends in a bank selected by
the Trustee.
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<PAGE>
5. Dissolution of BHC or Bank. In the event of the
dissolution or total liquidation of the BHC or the Bank, whether
voluntary or involuntary, the Trustee shall receive the moneys,
securities, rights or property to which the holders of BHC or
Bank Shares or Other Voting Securities, if any, are entitled, and
shall distribute the same to the Grantors, in accordance with
their respective interests, upon receipt from the Grantors and
cancellation of the outstanding Voting Trust Certificates;
provided, however, that any Other Voting Securities and any
securities that have voting rights on any matter, absolute or
contingent, as to any other insured depositary institution or
holding company ("Financial Institution Voting Securities") shall
remain subject to this agreement. This provision requiring
retention within the voting trust of Other Voting Securities and
Financial Institution Voting Securities shall not apply to the
securities of any insured depository institution or holding
company thereof whose shares are listed for trading on a national
securities exchange or the Nasdaq National Market; provided,
however, that the securities so distributed pursuant to this
paragraph shall not exceed three percent of any class of voting
shares outstanding for the insured depository institution or
holding company thereof. Upon such distribution, all further
obligations or liabilities of the Trustee to such Grantor in
respect of such of such moneys, securities, rights or property so
received shall cease. This Voting Trust Agreement shall terminate
upon such distribution to both Grantors. Any distribution in
partial liquidation of BHC or Bank shall be governed by section 4
hereof.
6. Resignation or Removal of Trustee. (a) The Trustee may at
any time resign by providing to each Grantor, the Board and the
CDFI written notice of the resignation, which shall take effect
sixty (60) days thereafter or upon the prior acceptance thereof,
provided that such resignation will not be effective until a
successor Trustee has been appointed in conformity with Section 7
hereof. The Trustee will be deemed to have given a notice of
resignation if he is disabled or otherwise unable to fulfill his
duties hereunder for a period of sixty (60) consecutive days. The
Board and the CDFI shall be entitled to remove the Trustee at any
time.
(b) Within thirty (30) business days after the Trustee
ceases to be the trustee under this Voting Trust Agreement for
any reason other than voluntary resignation, the Trustee or his
authorized representative will provide the Grantors a list of all
parties with which he has engaged in material negotiations
pursuant to Section 9 of this Voting Trust Agreement. In such
event, if a definitive agreement is executed with one of such
parties within one year of the Trustee's termination, and
thereafter such party closes a purchase of the Shares and other
Voting Securities, if any, or of the Bank, the Trustee will be
paid his fee under this Voting Trust Agreement from the proceeds
of such transaction.
7. Successor Trustee. In the event of the resignation, death
or removal of the Trustee, or the disability of the Trustee as
provided at Section 6 hereof, the Grantors shall jointly
designate a successor Trustee to fill the vacancy so occurring,
subject to the prior approval of the Board and the CDFI. The
rights, power and privileges of the Trustee named hereunder shall
be possessed by each successor Trustee (hereinafter, the
"Successor Trustee").
4
<PAGE>
8. Voting Rights and Trustee Qualifications.
(a) The Trustee, acting in his absolute discretion, shall
have the exclusive right to vote the Shares and Other Voting
Securities deposited with it hereunder or to give written
consents in lieu of voting thereon, in person or by proxy at any
and all meetings of the shareholders of BHC, or when such
consents are given in lieu of such meetings, for whatever purpose
called or held, and in any and all proceedings, whether at a
meeting of the shareholders or as may be required or authorized
by law, provided that the Trustee shall not alter the articles of
incorporation, by-laws, management or business plans of BHC in
any material respect without the prior approval of the Board and
the CDFI and prior notice to the Grantors. The Trustee shall have
no financial, family or business relationship with any Grantor,
BHC or the Bank other than the relationships established pursuant
to this Voting Trust Agreement.
(b) The Trustee shall exercise his right to nominate and to
vote to elect members of the Board of Directors of BHC in a
manner wholly independent of any direct or indirect influence of
the Grantors or any of their affiliates.
(c) No person other than the Trustee shall have any voting
right in respect of the Shares or Other Voting Securities so long
as this Voting Trust Agreement is in effect. The Trustee shall
have no beneficial interest in any such Shares, which interest
shall reside with the Grantors. The Trustee shall have no
financial, family or business relationship with any Grantor, BHC
or the Bank other than the relationships established pursuant to
this Voting Trust Agreement. The Trustee may not serve (or
previously have served) as a director, officer or employee of BHC
or the Bank and may not own securities of BHC.
9. Term and Termination.
(a) Subject to the prior termination of this voting trust in
accordance with Section 5 hereof, this voting trust shall
continue in effect until the first to occur of the following: (i)
the sale or disposition by merger or otherwise by the Trustee of
the Shares and Other Voting Securities, if any, and the
remittance to the Grantors of the proceeds thereof in accordance
with this Section 9 or (ii) subject to extension in accordance
with the provisions of Section 10 hereof, the date that is thirty
(30) calendar months after the Effective Date.
(b) The Trustee shall use his reasonable best efforts to
sell or otherwise dispose of the Shares and other Voting
Securities, if any, or the shares of the Bank, if necessary, in
such manner as the Trustee shall determine appropriate for
obtaining the best price or the price instructed by the Grantors
if Instructions have been issued. The Trustee shall use his
reasonable best efforts to cause any prospective purchaser to
offer to purchase all outstanding BHC shares. At any time prior
to the date which is six months prior to the expiration of the
period set forth in Section 9(a)(ii) hereof, the Grantors may
direct the Trustee to sell or otherwise dispose of some or all of
the Shares and Other Voting Securities, if any, in accordance
with confidential written instructions which may be issued,
amended or withdrawn only with the prior approval of the Board
and the CDFI (the "Instructions"). The Trustee shall provide the
Grantors with notice (including a copy) of any agreement in
principle and of any final agreement regarding the sale of the
Shares, each of which shall be subject to the approval of the
Grantors. Within fifteen (15)
5
<PAGE>
business days of receipt of such notice, the Grantors shall each
notify the Trustee whether or not they approve of the agreement
in principle or final agreement.
(c) The Grantors may bring potential purchasers to the
attention of the Trustee. With the prior written consent of the
Grantors, the Trustee shall be permitted to entertain offers from
entities or groups in which the management of BHC or the Bank
participate. The Trustee shall facilitate the due diligence of
any prospective purchaser proposed by the Grantors.
(d) In the event that six months prior to the termination of
the voting trust created by this Voting Trust Agreement the
Trustee has not entered into a final agreement of sale, the
Trustee shall take immediate steps for the final disposition
thereof, and shall comply with any instructions received from the
Board and the CDFI with respect to the time and manner of
disposition of the Shares and Other Voting Securities, if any,
including sale at public auction. A sale under this provision
shall not require the approval of the Grantors.
(e) Upon consummation of a sale or other disposition of the
Shares and Other Voting Securities, the Trustee shall pay, on
behalf of GA, out of the proceeds received from the sale of the
GA shares and Other Voting Securities attributable to the GA
shares, a civil money penalty to the Board in the amount of
$200,000, plus any profit resulting from GA's acquisition and
control of the Company. For the purposes of this Voting Trust
Agreement, GA's profit means the amount, if any, by which the
proceeds from the sale of the GA shares and Other Voting
Securities attributable to the GA shares, less the costs of sale
incurred in the ordinary course, exceed $32.05 million. GA has
consented to the Trustee's payment of such civil money penalty on
its behalf pursuant to the Order of Prohibition and to Cease and
Desist and Order of Assessment of Civil Money Penalties Issued
Upon Consent (the "Order") executed by GA on 11/30, 1998. The
Trustee shall remit such civil money penalty to the Board made
payable to the "Board of Governors of the Federal Reserve System"
and forwarded, with an executed copy of the Order, to Jennifer
Johnson, Secretary of the Board, Board of Governors of the
Federal Reserve System, Washington, DC 20551, who shall make
remittance to the Treasury of the United States as required by
statute.
(f) Upon consummation of a sale or other disposition of the
Shares and Other Voting Securities, if any, and except for the
payments provided in Section 9(e) above, the Trustee shall
distribute to the Grantors any monies, securities, rights or
property to which the holders of the Masagung Shares and the GA
shares and Other Voting securities, if any, are entitled,
including the proceeds from the sale or other disposition of the
Masagung Shares and the GA Shares and Other Voting Securities, if
any, upon receipt and cancellation of each Grantor's outstanding
Voting Trust Certificate, and upon such distribution all further
obligations of the Trustee to each Grantor in respect of any
monies, securities, rights or property so received and all Shares
or other securities deposited hereunder shall cease; provided,
however, that the Trustee shall not distribute any Other Voting
Securities or Financial Institution Voting Securities which shall
remain subject to this agreement and the Trustee shall have the
power and obligation to sell those securities pursuant to this
Section 9. This provision requiring retention within the voting
trust of Other Voting Securities and Financial Institution Voting
Securities shall not apply to the securities of any insured
depository institution or holding company thereof whose shares
6
<PAGE>
are listed for trading on a national securities exchange or the
Nasdaq National Market System; provided, however, that the
securities so distributed pursuant to this paragraph shall not
exceed three percent of any class of voting shares outstanding
for the insured depository institution or holding company
thereof.
(g) The Trustee shall report on a quarterly basis to the
Board, the CDFI, the FDIC and the Grantors on the status of the
Trustee's efforts to sell or otherwise dispose of the Shares and
Other Voting Securities, if any.
10. Extension of Term. The Grantors and the Trustee may not
extend the duration of this Voting Trust Agreement for an
additional period without the prior approval of the Board and the
CDFI.
11. Expenses of Trustee. With the prior approval of the
Grantors, which shall not be unreasonably withheld, the Trustee
shall have the right to employ such investment bankers, valuation
experts, professional advisors and legal counsel (the "Advisors")
as the Instructions may require or he may deem appropriate in the
performance of his duties hereunder. The Trustee shall have the
right to incur and pay the reasonable expenses, charges and fees
of the Advisors. To the extent required, such charges or expenses
shall be advanced by Mr. Masagung and GA, respectively, based
upon the proportion which the Masagung Shares and the GA Shares
bear to the Shares (hereafter, "proportionately"). Such charges
or expenses attributable to the sale of BHC or Bank or the
securities thereof, such as investment banker fees and expenses
and legal fees and expenses attributable to the sale, shall be
deducted from the sales price and borne by all selling parties in
proportion to the interests sold. All other such charges or
expenses, such as legal fees and expenses related to the
execution of this Voting Trust Agreement, shall be borne by Mr.
Masagung and GA. To facilitate the payment of expenses, charges
and fees of the Trustee and the Advisors, the Grantors shall
establish an account of $25,000 from which the Trustee may make
such payments, provided that, with respect to the Trustee's own
expenses, such payments shall be approved in advance by the
Grantors. Upon the written request of the Trustee, such
additional monies as may be required will be deposited in such
account.
12. Liability of Trustee. The Trustee shall not be liable by
reason of any matter or thing in any way arising out of or in
relation to this Voting Trust Agreement except for such loss or
damage as the Grantors may suffer directly by reason of the
Trustee's willful misconduct or gross negligence. The Trustee
when acting hereunder shall not be required to give a bond or
other security for the faithful performance of his duties as
such.
13. Indemnity, Etc.
(a) The Trustee shall be indemnified by Mr. Masagung and GA
proportionately from and against any and all loss, liability,
claim, damage and expense whatsoever (including, but not limited
to, any and all expenses whatsoever reasonably incurred in
investigating, preparing for or defending against any litigation,
commenced or threatened, or any claim whatsoever) (the
"Indemnified Claims") arising out of or based upon this Voting
Trust Agreement or the actions or failures to act of the Trustee
hereunder, except to the extent such
7
<PAGE>
Indemnified Claims are caused by or result from the Trustee's
willful misconduct or gross negligence (as determined by a final
and unappealable order of a court of competent jurisdiction).
(b) The Trustee shall be entitled to the prompt
reimbursement by Mr. Masagung and GA proportionately for the
Trustee's out-of-pocket expenses (including reasonable attorneys'
fees and expenses) incurred in investigating, preparing for and
successfully defending against any litigation, commenced or
threatened, arising out of or based upon this Voting Trust
Agreement or the actions or failures to act of the Trustee
hereunder; provided, however, that the Trustee shall be obligated
to return any such reimbursement if it is subsequently determined
by a final and unappealable order of a court of competent
jurisdiction that the Trustee was grossly negligent or engaged in
willful misconduct in the matter in question.
14. Compensation for Services. At and contingent upon the
closing of the sale of BHC or Bank, the Trustee shall receive
from Mr. Masagung and GA proportionately the agreed fees. Mr.
Masagung and GA hereby unconditionally agree to pay such fees to
the Trustee, which shall be in addition to, and not in lieu of,
the reimbursement of expenses provided for by Section 11 hereof
or the indemnity provided in Section 13.
15. Survival; Other Matters.
(a) Sections 11, 12 and 13 hereof shall survive the transfer
of all or any portion of the Shares or other interests, the
resignation or removal of the Trustee, the termination of the
voting trust created hereby and the termination of this Voting
Trust Agreement.
(b) This Voting Trust Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective
successors and assigns. No successor Trustee shall be liable for
any act, omission or default of any predecessor Trustee and vice
versa and no successor Trustee shall have any duty to investigate
any events or circumstances which may have occurred prior to its
appointment.
(c) This Voting Trust Agreement shall not confer any rights
or remedies upon any person or entity other than the parties and
their respective successors and assigns. No person or entity is
an intended third party beneficiary of any provision of this
Voting Trust Agreement.
16. Counterparts; Entire Agreement; Jurisdiction. This
Voting Trust Agreement may be executed in counterparts and each
shall be deemed to be an original. This Voting Trust Agreement
(including any Instructions issued pursuant to Section 9 hereof)
expresses the entire agreement between the parties and is
irrevocable except as expressly provided herein. The parties
hereby irrevocably submit to the exclusive jurisdiction and venue
of the state and federal courts located in San Francisco,
California and all actions arising out of or relating to this
Agreement shall be commenced only in one of those courts.
17. Notices. Any notice to or communication with any of Mr.
Masagung, GA, the Trustee, the Board and the CDFI shall be deemed
sufficiently given or made when received and shall be given in
writing, and delivered in person or sent by certified mail,
postage prepaid, or
8
<PAGE>
by private courier service or by telecopy or telex, to such
person at its address set forth below or at such other address as
such person may hereafter furnish in writing to the others.
Trustee
Mr. Robb Evans
Robb Evans & Associates
11450 Sheldon Street
Sun Valley CA 91352-1121
Telephone: 818-768-8100
Telecopier: 818-768-8802
with a copy to
Brobeck Phleger & Harrison LLP
Attn: J. Michael Shepherd, Esq.
One Market Street
San Francisco CA 94105
Telephone: 415-442-0900
Telecopier: 415-442-1010
Mr. Masagung
Mr. Putra Masagung
c/o Guthrie GTS Limited
115 Amoy Street #02-00
Singapore 069935
Telephone: 65-466-2555
Telecopier: 65-224-9211
with a copy to
Graham & James LLP
Attn: Nicholas Unkovic, Esq.
One Maritime Plaza, Suite 300
San Francisco CA 94111
Telephone: 415-954-0275
Telecopier: 415-391-2493
9
<PAGE>
GA
PT Gunung Agung
Attn: Mr. Lego Nirwhono
JL. MH. Thamrin
No. 55 Lantai 5
Jakarta 10350, Indonesia
Telephone: 6221-314-2007
Telecopier: 6221-230-1285
with a copy to
Cleary, Gottlieb, Steen & Hamilton
Attn: John C. Murphy, Jr., Esq.
2000 Pennsylvania Avenue, N.W.
Washington DC 20001-1801
Telephone: 202-974-1580
Telecopier: 202-974-1999
Board
Board of Governors of the Federal Reserve System
Attn: J. Virgil Mattingly, Jr., Esq.
General Counsel
20th and C Streets, N.W.
Washington DC 20551
Telephone: 202-452-3564
Telecopier: 202-736-5615
CDFI
California Department of Financial Institutions
Attn: Ken Sayre-Peterson, Esq.
Staff Counsel
801 K Street, Suite 2124
Sacramento CA 95814
Telephone: 916-322-1570
Telecopier: 916-324-2011
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<PAGE>
FDIC
Federal Deposit Insurance Corporation
Attn: Ms. Cathy Crail
25 Ecker Street, Suite 1900
San Francisco CA 94105
Telephone: 415-546-0160
Telecopier: 415-808-7940
18. Governing Law. This Voting Trust Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware without reference to its choice of law
provisions.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and in the case of the Grantor set opposite its signature
the number of Shares initially deposited by it hereunder.
Number or Shares to be PUTRA MASAGUNG
deposited hereunder
14,426,456
Number of Shares to be PT GUNUNG AGUNG
deposited hereunder
16,600,846
By ______________________________
Name:
Title:
_____________________________, as Trustee
Robb Evans
11
