<PAGE> 1
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): MARCH 30, 2000
FOOTHILL INDEPENDENT BANCORP
(Exact name of Registrant as specified in charter)
CALIFORNIA 0-11337 95-3815805
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
510 SOUTH GRAND AVENUE, GLENDORA, CALIFORNIA 91741
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:
(626) 963-8551 OR (909) 599-9351
NOT APPLICABLE
(Former name or former address, if changed, since last report)
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ITEM 5. OTHER EVENTS
On March 30, 2000, Foothill Independent Bancorp ("Foothill") purchased,
for a price of $11.50 per share, a total of 430,729 shares of common stock that
were owned by Basswood Financial Partners, LP and certain of its affiliates
("Basswood"). Those shares represented 7.5% of our outstanding shares. At the
same time certain officers and directors of Foothill or, its wholly owned
subsidiary, Foothill Independent Bank (the "Bank"), purchased 100,400 shares of
our common stock owned by Basswood for the same price per share.
In connection with the Company's purchase, Basswood entered into a
Settlement Agreement with Foothill, the principal elements of which are:
(1) A mutual settlement and release of all, and an agreement not to
assert any, claims that either Foothill or Basswood have or might have against
the other and, in connection with that settlement, a dismissal, without
prejudice, of a pending appeal of a California Superior Court decision,
described in our Proxy Materials for our 1999 Annual Meeting, relating to the
nature of the corporate and shareholder information that Basswood, as a record
shareholder of Foothill, was entitled to inspect pursuant to California law.
(2) A standstill agreement pursuant to which Basswood agreed that, for
a period of ten years, it will not:
o acquire or own more than 1% of Foothill's outstanding
shares;
o make any public announcement relating to, submit any
proposal for, or take any action in furtherance of
any extraordinary transaction or merger,
consolidation, sale of substantial assets or business
combination involving Foothill;
o participate in an election or other proxy contest or
seek to solicit the votes or written consents of
Foothill shareholders on any matter;
o submit any shareholder proposals for submission to a
vote or written consent of shareholders or call any
special meeting of shareholders of Foothill.
o seek in any other manner to control or influence the
management or policies of Foothill.
(3) An agreement that each of the parties will bear its own expenses in
connection with the purchase and these other matters.
In addition, Basswood has agreed that it will vote all of the 531,129
shares sold by it Basswood for approval of all of the Proposals submitted by the
Board of Directors to a vote of the shareholders at the Special Shareholders
Meeting to be held on April 25, 2000. At that meeting shareholders will vote on
approval of a reincorporation of Foothill from California to Delaware and
certain changes to Foothill's charter documents, including the elimination of
cumulative voting and the establishment of a staggered Board of Directors
pursuant to which approximately one-third of the directors will be elected on a
rotating basis each year. Basswood also has granted an irrevocable proxy for
those shares which can be exercised by Foothill in the event that the shares are
not otherwise voted for approval of these Proposals by Basswood.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements.
Not Applicable
(b) Pro Forma Financial Statements.
Not Applicable
(c) Exhibits.
10.1 Stock Purchase Agreement dated March 29, 2000 between
Foothill and Basswood.
10.2 Settlement Agreement dated March 29, 2000 between
Foothill and Basswood.
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.
Dated: April 4, 2000 FOOTHILL INDEPENDENT BANCORP
By: /s/ DONNA MILTENBERGER
------------------------
Donna Miltenberger,
Executive Vice President
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
10.1 Stock Purchase Agreement dated March 29, 2000 between Foothill
and Basswood.
10.2 Settlement Agreement dated March 29, 2000 between Foothill and
Basswood.
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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT dated as of March 29, 2000 (the
"Agreement"), is made and entered into by and between Foothill Independent
Bancorp, a California corporation (the "Company"), on the one hand, and each of
the following entities or persons (who shall collectively be referred to herein
as the "Basswood Group" and individually as a "Member" thereof), on the other
hand: Basswood Financial Partners, L.P., a Delaware limited partnership (the
"Basswood LP"), Basswood Partners, L.L.C., a Delaware limited liability company
("Basswood LLC"), Basswood Capital Management L.L.C., a Delaware limited
liability company ("BCM"), Whitewood Financial Partners, L.P., a Delaware
limited partnership ("Whitewood"), Basswood International Fund, Inc., a Cayman
Islands exempted company ("Basswood International"), and Matthew Lindenbaum and
Bennett Lindenbaum.
R E C I T A L S:
- - - - - - - -
A. The Company's Board of Directors has determined that it would be
advantageous and in the best interests of the Company and its shareholders for
the Company to repurchase shares of its common stock, without par value (the
"Common Stock") and, therefore, has previously approved and directed management
to effectuate open market and private purchases of shares of the Company's
Common Stock at prices approximating the prevailing prices of the Company's
Common Stock in the open market (the "Stock Purchase Program").
B. The Basswood Group has informed the Company that its members intend
to sell the shares of Common Stock of the Company owned by its Members (the
"Basswood Shares"), a schedule of which is attached as Exhibit A hereto.
C. The Company has advised the Basswood Group that, in furtherance of
the purposes of its Stock Purchase Program, the Company desires to purchase all
of the Basswood Group Shares (which shall sometimes be referred to herein as the
"Shares").
D. According to reports obtained from NASDAQ, the stock market on which
the Company's shares are listed for trading, the average of the prices at which
shares of Common Stock of the Company have been sold during the 20 trading days
immediately preceding the date that substantive negotiations of this Agreement
were commenced was $11.55 per share.
E. The Basswood Group Members are willing to sell the Shares to the
Company, and the Company has determined to buy those Shares, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties and covenants of the parties contained herein, the
parties hereby agree as follows:
1. Sale of Basswood Shares. Subject to the terms and conditions set
forth hereinafter, at the Closing (as hereinafter defined), each Member of the
Basswood Group shall sell, transfer and convey to the Company, free and clear of
all claims, liens, pledges, options, security interests, encumbrances,
restrictions and adverse interests of any kind or nature whatsoever
(collectively, "Liens and Adverse Interests") and, subject to the Company's
rights under Section 8(a) below to assign its purchase rights hereunder as and
to the extent provided therein, the Company shall purchase from each Member, the
number of the Basswood Shares owned beneficially by such Member, as set forth
opposite such Member's name on Exhibit A hereto, for a purchase price of eleven
and one-half dollars ($11.50) per share (the "Per Share Purchase Price"). The
respective amounts payable to each Member of the Basswood Group for all of such
Member's Shares is also set forth on Exhibit A hereto (each Member's "Purchase
Price"). It shall be a condition precedent to the Company's obligations that the
closing price of its shares on the date hereof shall not have declined by more
than 20% from the Per Share Purchase Price stated above and it shall be a
condition precedent to the
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obligations of the Basswood Group Members that such closing price shall not have
increased by more than 20% from the Per Share Purchase Price.
2. Payment for and Delivery of Shares. The delivery of the Basswood
Group Shares and the payment therefor shall take place concurrently at 10 A.M.
on March 31, 2000 or such other date and time that as may be agreed by the
parties (the "Settlement Date"). At that time and date the Members shall cause
to be effectuated an electronic transfer of ownership of the Basswood Group
Shares to the account of the Company and to the account of any Permitted Assigns
(as defined in Section 8(a) below) and, on confirmation that such electronic
transfer has been made, the Company and such Permitted Assignees, if any, shall
pay to each Member such Member's Purchase Price, as set forth in Exhibit A
hereto, by wire transfer of funds in accordance with wire transfer instructions
received from Basswood LP. In addition to the effectuation of the electronic
transfer of the Shares, the Company's obligation to pay for the Basswood Shares
shall be subject to the satisfaction of the following conditions: (i) that all
of the Basswood Shares are sold to the Company or its Permitted Assigns on or
before March 31, 2000, and (ii) that the parties shall have entered into a
Settlement Agreement substantially in the form of Exhibit B hereto.
3. Representations and Warranties of the Company. The Company
represents and warrants to the Members of the Basswood Group as follows:
(a) The Company has the corporate power and authority to
execute and deliver and to perform its obligations under this Agreement;
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms; and
(c) Neither the execution and delivery of, nor the
performance by the Company of its obligations under, this Agreement will result
in or constitute a breach or violation of, nor is any consent required to be
obtained under any contract, instrument or other agreement, written or oral, to
which the Company is subject or bound, other than any consent that has been
obtained.
4. Representations and Warranties of the Basswood Group Members. The
Members of the Basswood Group jointly and severally represent and warrant to the
Company, as follows:
(a) Each of the Basswood Members which is not a natural person
represents and warrants on its own behalf that (i) it has the corporate, limited
liability company or partnership (as applicable) power and authority to execute
and deliver, and to perform its obligations under, this Agreement, (ii) the
execution, delivery and performance of this Agreement by such Member has been
duly authorized by all requisite action of such Member required under applicable
law or its organizational documents, and (iii) this Agreement constitutes such
Member's valid and binding obligation, enforceable against it in accordance with
its terms.
(b) Each of the Basswood Group Members who is a natural person
represents and warrants on his own behalf that he (i) has the capacity, right,
power and authority to execute and deliver, and to perform his obligations
under, this Agreement and to consummate the transactions contemplated hereby,
and (ii) this Agreement has been duly executed and delivered by such Member and
constitutes his valid and binding obligation, enforceable against him in
accordance with its terms.
(c) Neither the execution and delivery of, nor the performance
by the Basswood Group Members of their respective obligations under, this
Agreement will result in or constitute a breach or violation of any contract,
instrument or other agreement, written or oral, to which any such Basswood Group
Member is a party or to which such Member's Shares are subject or bound.
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(d) Each of the Basswood Group Members owns beneficially (as
such term is defined below) the number of shares of Common Stock of the Company
set forth opposite his or its name under the column heading "Shares Beneficially
Owned" in Exhibit A attached hereto. Except for such shares listed in Exhibit A,
none of the Basswood Group Members and no Affiliate or Associate (as hereinafter
defined) of any of the Basswood Group Members owns beneficially, or of record,
any shares of Common Stock or other voting securities of the Company or any
rights, options or other securities that are or may become convertible,
exercisable or exchangeable for shares of Common Stock or any other voting
securities of the Company.
(e) The Basswood Group Members own beneficially the Shares set
forth opposite their respective names on Exhibit A and at the time of the
Closing shall have the right to, and shall, sell, transfer and convey such
Shares to the Company, free and clear of any and all Liens and Adverse Interests
of any kind and nature whatsoever, and without any restriction.
(f) Each Basswood Group Member possesses and has not assigned
or transferred to any Person the right to vote, or the right to give consents
with respect to, or any other rights of a shareholder under California law
arising out of such Member's ownership of, the Shares set forth opposite such
Member's name on Exhibit A. Except as otherwise provided in Section 4 below, no
such Member has executed or delivered, and it shall not execute or deliver, to
any Person any proxy to vote or exercise consensual rights with respect to any
of such Shares and it has not entered and shall not enter into, and none of such
Member's shares of Company Common Stock are subject to, any voting trust, power
of attorney or other agreement pertaining to the voting or consensual rights, or
the exercise of any other shareholder rights, arising out of the ownership of
such Shares of Common Stock.
5. Irrevocable Proxy and Voting Instructions.
(a) Each Basswood Group Member hereby constitutes and appoints
George E. Langley and Donna Miltenberger, and each of them, individually, with
full power of substitution (each, a "Proxy Holder"), as such Member's true and
lawful proxy and attorney-in-fact:
(i) to vote all the Shares of each Member at any
meeting of the Company's shareholders (and any adjournment or postponement
thereof) for which the record date is any date preceding the cancellation of the
Shares following their acquisition by the Company hereunder, as the Proxy
Holders, or either of them, acting individually, deems appropriate, in his or
her sole and absolute discretion, on or with respect to any and all proposals to
be voted on at any such meetings, including, but not limited to the Company's
Special Shareholders Meeting called for April 25, 2000 at which shareholders of
record as of March 17, 2000 will be voting on a proposed reincorporation of the
Company and certain changes in its charter and bylaws; and
(ii) to execute and deliver any and all written
consents and to exercise all other consensual rights with respect to each such
Member's Shares as the Proxy Holders, or either of them, acting individually,
deems in his or her sole and absolute discretion to be appropriate.
(b) Concurrently herewith, or at any time hereafter at the
request of the Company, and in furtherance and not in limitation of their
obligations hereunder, the Basswood Group Members shall execute proxies or
written instructions to any record holder of their Basswood Shares that shall
direct such record holders to vote their beneficially owned Shares of Common
Stock FOR approval of all of the Proposals to be submitted to a vote of the
Company's shareholder at the Special Meeting. If a Basswood Group Member fails
for any reason to issue such instructions to the record or nominee holder of its
Shares or attempts to revoke any such instruction, such failure or attempted
revocation shall constitute a breach of this Agreement and, without limiting any
other rights or remedies that the Company have by reason thereof, the Proxy
Holders, or either of them individually, shall have the right to vote that
Members Shares at that Special Meeting in accordance with
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the provisions of this Section 5. The vote of a Proxy Holder shall control in
any conflict between a vote of such Shares by a Proxy Holder and a vote by a
Basswood Member or by a record or nominee holder of such Shares.
(c) Each of the foregoing proxies and powers of attorney,
provided for in Paragraphs 5(a) and 5(b) above, are being granted as security
for the obligations of the Basswood Group Members under this Agreement and a
Settlement Agreement of even date herewith being entered into by them with the
Company (the "Settlement Agreement") and shall be irrevocable for a period of
eleven months following the date hereof, shall be deemed to be coupled with an
interest sufficient in law to support an irrevocable proxy and shall revoke all
prior proxies granted by such Basswood Group Members. The expiration of the
foregoing 11 month period shall be "tolled" during any period that any Basswood
Group Member is in breach of this Agreement or the Settlement Agreement and on
the remedying of such breach such 11 month period shall be extended for a period
of time equal to the duration of such breach.
(d) Each Basswood Group Member covenants that, except as set
forth above in this Section 5, such Member shall not exercise any voting or
consensual rights or grant any proxy or power of attorney to any Person with
respect to such Member's Shares, and any attempt to do so shall be void and
ineffective. The power of attorney granted in this Section 5 by each Basswood
Group Member is a durable power of attorney and shall survive such Member's
death, disability or other incapacity.
(e) Each Basswood Group Member shall execute and deliver such
other documents or instruments as may be requested by the Company to better
effectuate or evidence the power of attorney and proxy and the voting and
consensual rights granted hereunder to the Proxy Holders with respect to each
such Basswood Group Member's Shares. Such documents and instruments shall
include, but shall not be limited to, an irrevocable instruction to the
Inspector of Elections for any Company shareholders meeting, including the
Special Meeting, that in the event that such Member's Shares are voted by such
Member or such Member's agent or nominee in a manner inconsistent with this
Section 5 or inconsistent with voting instructions received from either or both
of the Proxy Holders, such votes or written consents from the Member or its
agent or nominee shall be disregarded and such Shares shall be voted in
accordance with instructions given by either or both of the Proxy Holders (or by
any persons to which they may, by substitution, assign such voting or consensual
rights with respect to such Shares).
6. Specific Performance. Each of the Basswood Group Members hereby
acknowledges and agrees that irreparable injury to the Company would occur in
the event any of the provisions of Section 1 or of Section 5 hereof were not
performed in accordance with their specific terms or were otherwise breached and
that such injury would not be fully compensable in damages. It is therefore
agreed by the Basswood Group Members that, without limiting any other rights or
remedies available to the Company hereunder: (i) the Company shall be entitled
to temporary, preliminary and permanent injunctive relief against any breach or
threatened breach of, and to specific enforcement, of the terms of Section 1 or
the terms of Section 5 hereof; and (ii) none of the Basswood Group Members shall
take any action, directly or indirectly, in opposition to the Company's petition
seeking such relief on the grounds that any other remedy or relief is available
at law or in equity, and (iii) the Company shall not be obligated to post a
bond, cash deposit or other security as a condition to the granting of such
relief.
7. Certain Definitions and Headings. As used in this Agreement:
(a) the terms "beneficial ownership" and "beneficially owned"
and any variants thereof shall have the meaning given to such terms in Rule
13d-3, as such Rule is currently in effect, under the Exchange Act;
(b) the term "Person" shall mean any natural person,
corporation, partnership (general or limited), limited liability company, group,
syndicate, trust, government or agency thereof, or any other association or
entity;
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(c) the terms "Affiliates" and "Associates" shall have the
respective meanings set forth in Rule 12b-2 promulgated by the Commission under
the Securities Exchange Act of 1934, as in effect on the date hereof, and shall
include Persons who are Affiliates or Associates of any Person on the date
hereof or who become Affiliates or Associates of any Person subsequent to the
date hereof;
(d) the word "including" shall be deemed to be followed by the
words "without limitation" "but not limited to".
(e) The captions and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8. Miscellaneous.
(a) Successors and Assigns. All the terms and provisions of
this Agreement shall inure to the benefit of and shall be enforceable by the
respective successors and permitted assigns of the parties hereto; provided that
neither the Company, on the one hand, nor any of the Basswood Members, on the
other hand, may assign or otherwise transfer its rights or interests, nor
delegate its duties hereunder without the prior written consent of the other
party hereto. Neither the death, disability or incapacity (whether legal,
physical or mental) of any party hereto occurring after the date hereof shall
affect the continued and continuing validity or enforceability of this Agreement
on such party and its successors, heirs, representatives or assigns and this
Agreement shall survive and continue in full force and effect and to be binding
on such party and its successors, heirs, representatives or assigns
notwithstanding such death, disability or incapacity. Notwithstanding the
foregoing, the Company may assign its rights to purchase any of the Basswood
Group Shares to any of its directors or officers and to a limited number of
other sophisticated investors (a "Permitted Assign"), provided that the Company
shall be obligated to purchase and pay for any of the Shares which any Permitted
Assignee agrees, but fails, to purchase and pay for at the Closing.
(b) Survival. All representations, warranties, covenants,
agreements and understandings made by the parties in this Agreement or pursuant
hereto shall survive the date hereof indefinitely.
(c) Entire Agreement; Amendment. Except for the Settlement
Agreement, this Agreement (together with any Exhibits hereto) contains the
entire understanding of the parties hereto with respect to its subject matter
and there are no representations, warranties, agreements, covenants or
undertakings that pertain to the subject matter of this Agreement other than
those expressly set forth herein. This Agreement may be amended only by a
written instrument duly executed by the parties hereto or their respective
successors or permitted assigns or, in the case of the Basswood Group Members by
their Representative (as hereinafter defined).
(d) No Waiver. Any waiver by any party hereto of the duty to
perform or of a breach of any obligation of another party hereto under this
Agreement shall not be effective unless it is set forth in a written instrument
signed and delivered by the party against whom the waiver is sought to be
enforced and no such written waivers shall operate as or be construed to be a
waiver of any other instance of a breach (actual or threatened) of or failure to
perform the same obligation or of any other obligation of such party under this
Agreement. The failure of a party hereto to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or course of conduct and shall not deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
given on the day when delivered by hand, on the day when sent by telecopy and
confirmed and on the third business day after being deposited in the mail
(registered or certified, postage prepaid, return receipt requested) to the
respective parties hereto as set forth in Exhibit E to the Settlement Agreement.
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(f) Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
without reference to conflicts of law principles. Any action or proceeding
brought with respect to this Agreement or the performance or non-performance by
any party hereto of its obligations under this Agreement shall be brought and
maintained exclusively in the Superior Court of the State of California in Los
Angeles County or in the Federal District Court for the Central District of
California and no party hereto shall contest the subject matter or personal
jurisdiction or the venue of such court or courts, or assert the defense of
forum nonconviens and each party agrees to accept and not challenge the adequacy
of any notice in any such action or proceeding that is given by means of
certified or registered first class mail.
(g) Severability. If any term, provision covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect, unless such actions would substantially impair the material benefits of
any of the parties under the remaining provisions of this Agreement.
(h) Basswood Group Representative. Each Basswood Group Member
hereby irrevocably appoints Matthew Lindenbaum as such Member's attorney-in-fact
and representative (the "Representative"), to act in such Member's place, stead
and name, to do any and all things and to execute any and all documents and give
and receive any and all notices or instructions in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding any
provision hereof to the contrary, the Company shall be entitled to rely upon, as
being binding on each of the Basswood Group Members, any action taken by the
Representative or upon any document, notice, instruction or other writing given
or executed by the Representative, and any such act, document, notice,
instruction or other writing shall bind and shall be strictly enforceable
against each of the Basswood Group Members.
(i) Further Assurances. At the request of any party (a
"requesting party") to another party hereto, on or at any time after the date
hereof, such other party shall execute and deliver such instruments and
documents requested by the requesting party in order to evidence or better
effectuate, but not to enlarge, the rights of the requesting party under this
Agreement.
(j) Interpretation. This Agreement is the result of
arms-length bargaining between the parties and no provision of this Agreement or
any ambiguity that may be found therein, shall be construed or interpreted
against a party hereto because such party, or its counsel, was the primary
draftsman of such provision.
(k) Expenses and Attorneys Fees. Each party hereto shall bear
its own expenses in connection with the execution and delivery and performance
by such party of this Agreement. In the event any legal action or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach or default in connection with any of the provisions of
this Agreement, the prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
(l) Joint and Several Obligations. The representations and
warranties and the covenants of the Basswood Group Members under this Agreement
shall be joint and several.
(m) Counterparts. This Agreement may be executed in counter
parts, each of which shall be deemed an original, but each of which together
shall constitute one and the same Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or
caused to be executed and delivered, this Settlement Agreement on the date first
above written.
FOOTHILL INDEPENDENT BANCORP BASSWOOD FINANCIAL PARTNERS, L.P.,
a California corporation
By: Basswood Partners, L.L.C.,
its General Partner
By: /s/ DONNA MILTENBERGER By: /s/ MATTHEW LINDENBAUM
---------------------------- --------------------------
WHITEWOOD FINANCIAL PARTNERS, L.P., BASSWOOD PARTNERS, L.L.C.
By: /s/ MATTHEW LINDENBAUM By: /s/ MATTHEW LINDENBAUM
---------------------------- ------------------------------
BASSWOOD INTERNATIONAL FUND, INC., BASSWOOD CAPITAL MANAGEMENT L.L.C.,
By: /s/ MATTHEW LINDENBAUM By: /s/ MATTHEW LINDENBAUM
---------------------------- ------------------------------
/s/ MATTHEW LINDENBAUM /s/ BENNETT LINDENBAUM
- ---------------------------- ------------------------------
Matthew Lindenbaum Bennett Lindenbaum
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EXHIBIT A
<TABLE>
<CAPTION>
Shares
Name of Basswood Beneficially Purchase
Group Member Owned Price
- ---------------- ------------ --------
<S> <C> <C>
Basswood Financial Partners LP,
Basswood Partners LLC, Matthew
and Bennett Lindenbaum 417,103 $4,796,684.50
Whitewood Financial Partners, L.P. 4,193 $ 48,219.50
Basswood International Fund, Inc. 109,733 $1,261,929.50
Bennett Lindenbaum 100 $ 1,150.00
------- -------------
TOTALS 531,129 $6,107,983.50
======= =============
Basswood Shares to be purchased:
By the Company: 430,729 $4,953,383.50
By certain officers and directors: 100,400 $1,154,600.00
------- -------------
TOTALS 531,129 $6,107,983.50
======= =============
</TABLE>
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EXHIBIT 10.2
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into as of March
29, 2000 by and among Foothill Independent Bancorp, a California corporation
(the "Company"), on the one hand, and each of the following entities or persons
(who shall collectively be referred to herein as the "Basswood Group" and
individually as a "Member" thereof), on the other hand: Basswood Financial
Partners, L.P., a Delaware limited partnership ( "Basswood LP"), Basswood
Partners, L.L.C., a Delaware limited liability company ("Basswood LLC"),
Basswood Capital Management L.L.C., a Delaware limited liability company
("BCM"), Whitewood Financial Partners, L.P., a Delaware limited partnership
("Whitewood"), Jet I, L.P., a Delaware limited partnership ("Jet I"), Basswood
International Fund, Inc., a Cayman Islands exempted company ("Basswood
International"), 1994 Garden State L.P., a Delaware limited partnership ("Garden
State"), and Matthew Lindenbaum ("ML") and Bennett Lindenbaum ("BL").
R E C I T A L S:
- - - - - - - -
WHEREAS the Basswood Group beneficially owns an aggregate of 531,129
shares (the "Shares") of Common Stock, without par value (the "Common Stock"),
of the Company and the Basswood Group Members have filed a Schedule 13D, and
various amendments thereto, with respect to their ownership of such Shares
pursuant to Section 13(d) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
WHEREAS, the Members of the Basswood Group have represented to the
Company that none of them has any intention (and never had any intention) to
make an acquisition proposal for the Company, or to make a tender offer for
shares of its Common Stock, and, although they solicited proxies for an
opposition candidate at the Company's 1999 Shareholders Meeting, they have no
intention hereafter to solicit proxies for the purpose of electing one or more
directors of the Company or otherwise changing the composition of the Board of
Directors of the Company;
WHEREAS, the Basswood Group Members are willing to bind themselves
contractually to act in accordance with the above statement of intentions, and,
upon becoming contractually so bound, the parties hereto are desirous of
pursuing a constructive and harmonious relationship between the Company and the
Basswood Group Members, in their capacity as shareholders of the Company.
WHEREAS the Company on the one hand, and Basswood LP on the other hand,
have pending against each other appeals and a cross-appeal (Appellate Case No.
B133924) in the Second District Court of Appeal of the State of California (the
"Court of Appeal") of certain decisions rendered by the California Superior
Court of the County of Los Angeles, in Case No. BS 056436 (collectively, the
"Litigation"), and Basswood LP and the Company desire to settle the Litigation;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereby agree as follows:
1. Representations and Warranties of the Parties.
1.1 Representations of the Basswood Group Members.
(a) the Members of the Basswood Group identified on
Exhibit A hereto "beneficially own" (as hereinafter defined) the Shares
(as hereinabove defined); and except as otherwise set forth on Exhibit
A hereto none of the Basswood Group Members nor any of their respective
Affiliates or Associates (as hereinafter defined) beneficially owns any
Voting
<PAGE> 2
Securities (as hereinafter defined) of the Company or rights or
interests in any such Voting Securities and no such Member has or is a
party to any agreements, arrangements or understandings with any Person
(as hereinafter defined) regarding (i) the acquisition or disposition
of any of the Shares or any other Voting Securities, (ii) any possible
shareholder proposal with respect to the Company, (iii) any possible
solicitation of proxies for any matter, or (iv) any matter or
transactions prohibited by Section 3 hereof.
(b) The statement of intentions of the Basswood Group
Members contained in the Recitals, by this reference, are incorporated
herein and made an integral part of this Agreement, and are true and
correct.
(c) Each of the Basswood Group Members which is not a
natural person represents and warrants on its own behalf that (i) it
has the corporate, limited liability company or partnership (as
applicable) power and authority to execute and deliver, and to perform
its obligations under, this Agreement, (ii) the execution and delivery
of this Agreement by such Member and the consummation by such Member of
the transactions contemplated by this Agreement have been duly
authorized by such Member, and (iii) this Agreement has been duly
executed and delivered by such Member and it constitutes such Member's
valid and binding obligation enforceable against it in accordance with
its terms.
(d) Each of the Basswood Group Members who is a
natural person represents and warrants on his own behalf that he (i)
has the capacity, right, power and authority to execute and deliver,
and to perform his obligations under, this Agreement and to consummate
the transactions contemplated hereby, and (ii) this Agreement has been
duly executed and delivered by such Party and constitutes his valid and
binding obligation, enforceable against him in accordance with its
terms.
(e) Each of the Basswood Group Members represents and
warrants that neither the execution and delivery of, nor the
performance by such party of his or its (as the case may be)
obligations under, this Agreement will result in or constitute a breach
or violation of any contract, instrument or other agreement, written or
oral, to which such party is or to which such party's shares of Common
Stock are subject or bound.
(f) Such Member has not assigned any of the Released
Claims referred to in Section 4.4 below to any Person.
(g) If any Basswood Group Member has been appointed
as the attorney in fact of any other party hereto with the power and
authority to execute and deliver this Agreement on behalf and in the
name of such other party, that attorney in fact hereby represents and
warrants that the power of attorney conferring such power and authority
on him has been validly executed and delivered by and is a binding and
enforceable obligation of the party that has granted such power of
attorney and such power of attorney has not been revoked, rescinded or
modified and is in full force and effect and the execution and delivery
of this Agreement by such attorney in fact on behalf and in the name of
the other party that has granted the power of attorney shall be binding
on and enforceable against such other party.
1.2 Representations and Warranties of the Company. The Company
hereby represents and warrants as follows:
(a) The Company has the corporate power and authority
to execute and deliver and to perform its obligations under this
Agreement;
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<PAGE> 3
(b) This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms;
(c) Neither the execution and delivery of, nor the
performance by the Company of its obligations under, this Agreement
will result in or constitute a breach or violation of any contract,
instrument or other agreement, written or oral, to which the Company is
subject or bound; and
(d) The Company has not assigned any of the Released
Claims referred to in Section 4.4 below to any Person.
2. Term of Agreement. The term of this Agreement shall be ten (10)
years, commencing on the date hereof and continuing until March 29, 2010 (the
"Term").
3. Covenants of the Basswood Group Members. Unless otherwise
specifically requested in writing and in advance by the Company (it being
understood and agreed that a Member or Affiliate or Associate of a Member shall
not seek to have the Company or any of the Company's officers, directors,
representatives, trustees, employees, attorneys, advisors, agents, affiliates or
associates make any such request), for a period beginning on the date hereof and
continuing until the tenth (10th) anniversary of the date hereof, each Basswood
Group Member and its Affiliates and Associates shall not, alone or in concert
with others (and none of such Members nor their respective Affiliates or
Associates shall advise, assist or encourage others to), directly or indirectly:
3.1 Acquire, or agree to acquire, by purchase or otherwise,
ownership (including, but not limited to, beneficial ownership) of any Common
Stock or other voting securities of the Company (collectively and including
Common Stock, "Voting Securities") that may be outstanding at any time or any
direct or indirect rights (including convertible securities) or options to
acquire such ownership if, as a result of such acquisition, the Basswood Group
Members and its Affiliates and Associates would beneficially own, in the
aggregate, more than 1% of the Company's outstanding Voting Securities (the
"Percentage Limitation").
3.2 Make any public announcement with respect to, or submit
any proposal for, or take any action in furtherance of or with respect to, (i)
the acquisition of beneficial ownership of any Voting Securities of the Company
(or direct or indirect rights, including convertible securities, or options to
acquire such beneficial ownership) that would cause the Percentage Limitation to
be exceeded, or (ii) any extraordinary transaction or merger, consolidation,
sale of substantial assets or business combination involving the Company or any
of its Affiliates, whether or not any Persons other than or in addition to
Basswood Group Members and their Affiliates or Associates are involved and
whether or not such proposal might require the making of a public announcement
by the Company.
3.3 Make, or in any way participate in, any "solicitation" of
"proxies" or shareholder "consents" (as such terms are defined or used in
Regulation 14A under the Exchange Act) or become a "participant" in any
"election contest" or other proxy contest (as such terms are defined or used in
Rule 14a-11 under the Exchange Act), or otherwise to seek votes from holders of
the Company's Voting Securities with respect to any matter, either alone or with
other Persons, or seek to advise or influence any person or entity with respect
to the voting of, any of their Voting Securities on any matters submitted to a
shareholder vote or to a shareholder action by written consent.
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<PAGE> 4
3.4 Form, join or in any way participate in a "group" (as such
term is used in Section 13d(3) of the Exchange Act) with respect to any
securities of the Company or any of its Affiliates or Associates in connection
with any action or matter otherwise prohibited by the terms of this Agreement.
3.5 Initiate, or propose any shareholder proposals for
submission to, a vote or written consent of shareholders with respect to the
Company or any of its Affiliates or propose any person for election to or seek
representation on the Board of Directors of the Company or any of its
Affiliates.
3.6 Seek, alone or in concert with others, to call a meeting
of shareholders, the initiation or conduct of a consent solicitation or the
removal of any member of the Board.
3.7 Initiate, or assist any other Person, to initiate any
communication with any employee, customer or vendor of the Company or any
subsidiary or Affiliate of the Company or any subsidiary regarding matters
relating to the Company or any such subsidiary or any of their respective
Affiliates with a view towards interfering with or otherwise adversely affecting
the relationship between the Company, any such Subsidiary or any such Affiliate,
on the one hand, and any such employee, customer or vendor, on the other hand.
3.8 Seek in any other manner to control or influence the
management or policies of the Company or any of its Affiliates.
3.9 Deposit any Voting Securities in any voting trust or
subject any Voting Securities to any agreement or other arrangement with respect
to the voting of any Voting Securities, except as provided in this Agreement.
3.10 Institute, prosecute or pursue against the Company, or
any of the other Company Releasees (as defined in Section 4 below), any demands,
claims, causes or rights of action, suits or other proceedings of any kind or
nature whatsoever ("Claims"), whether brought at law or in equity, in the
Member's own right or derivatively, and whether based on any federal, state or
foreign law or right or cause of action, direct, indirect or representative in
nature, (i) with respect to any action hereafter taken by the Company with the
approval of a majority of the Company's directors that is only properly
assertable derivatively in the right of the Company, or (ii) on behalf of a
class of the Company's security holders.
3.11 Make demand for or seek to inspect or copy or use or
disclose any corporate records, or lists of record or beneficial owners of
Voting Securities, of the Company.
3.12 Disclose to any third party, or make any filing under the
Exchange Act (including, without limitation, under Section 13(d) thereof)
disclosing, any intention, plan or arrangement inconsistent with the foregoing.
3.13 Request the Company, or any of the Company Releasees (as
hereinafter defined), to waive, amend or modify in any material respect any
restrictions contained in this Section 3 (or to waive, amend or modify this
Section 3.13), except that a request may be so made if (i) it is made solely to
the Board of Directors of the Company and is not disclosed to any other Person
and (ii) is not of a nature that it could be required, under applicable laws or
regulations, to be publicly disclosed either by any of the Basswood Group
Members or their Affiliates or Associates, on the one hand, or by the Company,
on the other hand.
3.14 Enter into any discussions, negotiations, arrangements,
understandings or agreements with any Person with respect to any of the
foregoing prohibited actions.
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<PAGE> 5
4. Dismissal of Litigation and Mutual Release.
4.1 As promptly as practicable, but in no event later than the
tenth (10th) day following the execution of this Agreement, the Company and each
Member of the Basswood Group that is a party to the Litigation will take all
necessary steps and file all documents to dismiss the Litigation without
prejudice. To that end, such parties shall file with the Court of Appeal a
stipulation and order substantially in the form of Exhibit B hereto, dismissing
Basswood LP's appeal and Foothill's appeal and cross appeal in the Litigation
and requesting the Court of Appeal to issue its remittitur with an order
instructing the Superior Court to vacate its preemptory writ of mandate issued
June 1, 1999 in Los Angeles Superior Court Case No. BS056436 (the "Writ"). If
the Court of Appeal fails to include in its remittitur such an order of
instruction, the parties shall enter into and file, with the Superior Court, a
stipulation and proposed order substantially in the form of Exhibit C hereto,
requesting the Superior Court to issue an order vacating the Writ.
4.2 The Basswood Group Members, individually and collectively,
and on behalf of their respective heirs, estates, personal representatives, and
past, present and future directors, officers, partners, managers, successors,
predecessors, subsidiaries, principals, Affiliates, Associates, agents,
representatives, attorneys, advisors and consultants (collectively, the
"Basswood Releasors"), hereby release and forever discharge the Company and its
successors and subsidiaries, and their respective former, present and future
directors, officers, Affiliates, Associates, employees, agents, representatives,
attorneys, advisors and consultants (collectively, the "Company Releasees"),
from any and all "Released Claims" (as defined in Section 4.4 hereof). The
Basswood Group Members further covenant that they shall not assert, bring or
threaten to bring, and shall prevent the other Basswood Group Releasors from
asserting, bringing or threatening to bring, any Claims (as defined in Section
3.10), and shall not assist anyone threatening to make or bring or making or
bringing any Claims against the Company or any of the other Company Releasees,
that if brought by one of the Basswood Group Members or Basswood Group
Releasors, would constitute a Released Claim.
4.3 The Company, on its behalf, and on behalf of each of its
successors, predecessors and subsidiaries and the Company's and their respective
past, present and future directors, officers, employees, Affiliates, Associates,
agents, representatives, attorneys, advisors and consultants (the "Company
Releasors"), hereby releases and forever discharges the Basswood Group Members
and their respective successors, Affiliates, Associates, and former, present and
future directors, partners, officers, managers, employees, agents,
representatives, attorneys, advisors and consultants (collectively, the
"Basswood Releasees"), from all of the Released Claims (as hereinafter defined).
The Company further covenants that it shall not assert or bring, and shall
prevent the other Company Releasors from asserting, bringing or threatening to
bring, any Claims and shall not or assist anyone threatening to make or bring or
making or bringing any Claims against any of the Basswood Releasees that, if
brought by the Company, would constitute a Released Claim.
4.4 For purposes of this Agreement, the term "Released Claims"
shall mean any and all Claims (as defined in Section 3.10 above) of any kind or
nature whatsoever brought by any party to this Agreement or any party on whose
behalf a release is given under Section 4.2 or Section 4.3 above (a "Releasing
Party"), whether at law or in equity, in the Releasing Party's own right or
derivatively, and whether such Claim is based on any federal, state or foreign
law or right or cause of action, whether such Claim is direct, indirect or
representative in nature, and whether or not such Claims are fixed or
contingent, known or unknown foreseen or unforeseen, which any Releasing Party
hereto has, has had or will or may have by reason of any matter, circumstance,
event, action or omission, cause or any other thing whatsoever, from the
beginning of time to the date of this Agreement, against any other party to this
Agreement (including each and every Claim arising out of or related to the proxy
contest and proxy solicitations conducted in connection with the Company' 1999
Annual Shareholders' Meeting, the
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<PAGE> 6
Litigation and the matters and transactions described in the Company's Proxy
Materials dated March 20, 2000 relating to a Special Meeting of Shareholders of
the Company to be held on April 25, 2000 (a copy of which Proxy Materials have
been furnished to the Basswood Group Members). Notwithstanding the foregoing,
however, the Released Claims shall not include and the foregoing releases
contained in this Section 3 shall not extend to or affect Claims, if any, as may
arise out of or relate to the execution, delivery, performance or
non-performance or enforcement of (i) this Agreement, (ii) any confidentiality
agreements heretofore entered into among any of the parties and (iii) a stock
purchase agreement among the parties expected to be entered into concurrently
with or following the execution and delivery of this Agreement.
4.5 In entering into the release set forth in this Section 4,
each of the Basswood Releasors and each of the Company Releasors do hereby
mutually waive and relinquish any and all rights which any of them may have
under the provisions of Section 1542 of the Civil Code of the State of
California, pertaining in any way to the subject matter of the Released Claims.
Section 1542 of the Civil Code of the State of California reads as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
4.6 Each of the Basswood Releasors and each of the Company
Releasors has been represented by counsel of its or their own choosing in
connection with the releases granted hereby and the waiver of 1542 of the Civil
Code of the State of California, and understands the significance and effects of
such releases and such waiver.
4.7 The Company, on the one hand, and each Basswood Group
Member, on the other hand, agrees that it and its respective Affiliates and
Associates will not (and it and its respective Affiliates and Associates will
not advise, assist or encourage others to) institute, prosecute or pursue with
any Federal, state or other governmental or regulatory authority, domestic or
foreign, any of the Released Claims at law or in equity, which either have been
asserted or could have been asserted against the other or against any of the
Released Parties. Nothing in this Section 4.7 shall in any way prohibit or
restrict any party from responding to inquiries, demands, requests or subpoenas
from governmental or regulatory authorities ("Governmental Inquiries");
provided, however, that in the event that the Company, on the one hand, or any
Basswood Group Member, on the other hand, shall receive any Governmental
Inquiries relating to the other, it shall, unless precluded by applicable law in
the reasonable judgment of its outside counsel from doing so, within two
business days of receipt, provide notice of such Governmental Inquiries (and, if
in writing, a copy thereof) to the other party.
4.8 Nothing in this Section 4 shall in any way constitute an
agreement by any party hereto to indemnify any other party hereto against any
third party claim or, except as specifically set forth herein, waive, release,
limit or restrict any Claim which any party may have against any Person that is
neither a party to this Agreement nor one of the Releasees of a party hereto.
4.9 The parties hereto acknowledge and agree that this
Settlement Agreement is entered into as a mutual compromise and settlement which
is not in any respect or for any purpose to be deemed or construed as an
admission or concession of any liability or fault whatsoever on the part of any
of the parties hereto.
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<PAGE> 7
5. Specific Performance. Each of the Basswood Group Members, on the one
hand, and the Company, on the other hand, hereby acknowledges and agrees that
irreparable injury to the other party or parties (as the case may be) hereto
would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached and
that such injury would not be fully compensible in damages. It is accordingly
agreed that, without limiting any other rights or remedies available to an
aggrieved party hereunder: (a) each party hereto (the "Moving Party") shall be
entitled to temporary, preliminary and permanent injunctive relief against any
breach or threatened breach of, and to specific enforcement, of the terms
hereof; and (b) the other parties hereto against which such relief is sought
shall not take action, directly or indirectly, in opposition to the Moving Party
seeking such relief on the grounds that any other remedy or relief is available
at law or in equity, and (c) the Moving Party shall not be obligated to post a
bond or other security as a condition to the granting of such relief.
6. Press Release. Upon execution of this Agreement, the Company shall
issue a press release in the form attached as Exhibit D hereto (the "Joint Press
Release"). None of the parties hereto will make any public statement (including
any statement in any filing with the Commission or any other governmental
agency) regarding this Agreement or any event occurring prior to the date hereof
relating in any way to the subject matter of this Agreement, that is either
contrary to the statements in the Press Release or that is critical of any other
such party or its actions; provided that all such public statements shall be in
compliance with applicable securities laws.
7. Certain Definitions. As used throughout this Agreement:
7.1 the terms "beneficial ownership" and "beneficially owned"
and any variants thereof shall have the meaning given to such terms in Rule
13d-3, as such Rule is currently in effect, under the Exchange Act;
7.2 the terms " "Affiliate" and "Associate" shall have the
respective meanings given to such terms in Rule 12b-2, as such Rule is currently
in effect, under the Exchange Act;
7.3 the term "Person" shall mean any natural person,
partnership, corporation, group, syndicate, trust, government or agency thereof,
or any other association or entity;
7.4 the word "including" shall be deemed to be followed by the
words "without limitation."
8. Miscellaneous.
8.1 Successors and Assigns. All the terms and provisions of
this Agreement shall inure to the benefit of and shall be enforceable by, and
shall be binding on, the respective successors and permitted assigns of the
parties hereto; provided that neither the Company, on the one hand, nor any of
the Basswood Members, on the other hand, may assign or otherwise transfer its
rights, duties or other interests hereunder without the prior written consent of
the other party hereto.
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<PAGE> 8
8.2 Survival of Representations. All representations,
warranties, covenants, agreements and understandings made by the parties in this
Agreement or pursuant hereto shall survive the date hereof until the Standstill
Termination Date, provided that Section 5 hereof shall survive indefinitely.
8.3 Entire Agreement; Amendment. Except for a Stock Purchase
Agreement of even date herewith between the Company and the Basswood Group
Members that own Voting Securities of the Company, this Agreement contains the
entire understanding of the parties hereto with respect to the subject matter of
this Agreement and there are no representations, warranties, agreements,
covenants or undertakings that pertain to the subject matter of this Agreement
other than those expressly set forth herein or in the Stock Purchase Agreement.
This Agreement may be amended only by a written instrument duly executed by the
parties hereto or their respective successors or permitted assigns.
8.4 No Waiver. Any waiver by any party hereto of a breach of
any provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party hereto to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
8.5 Headings. The captions and section headings contained in
this Agreement are for reference purposes only and shall not effect in any way
the meaning or interpretation of this Agreement.
8.6 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
given on the day when delivered by hand, on the day when sent by telecopy and
confirmed and on the fifth business day after being deposited in the mail
(registered or certified, postage prepaid, return receipt requested) to the
respective parties hereto as set forth in Exhibit E hereto.
8.7 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
without reference to conflicts of law principles. Any action or proceeding
brought with respect to this Agreement or the performance or non-performance by
any party hereto of its obligations under this Agreement shall be brought and
maintained exclusively in the Superior Court of the State of California either
in Riverside, San Bernardino or Los Angeles Counties or in the Federal District
Court the jurisdiction of which includes any of such counties and no party
hereto shall contest the subject matter or personal jurisdiction or the venue of
such court or courts, or assert the defense of forum nonconviens and each party
agrees to accept and not challenge the adequacy of any notice in any such action
or proceeding that is given by means of certified or registered first class
mail.
8.8 Attorneys Fees. If any legal action or other proceeding is
brought for the enforcement of this Settlement Agreement, or because of an
alleged dispute, breach or default in connection with any of the provisions of
this Settlement Agreement, the prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
8.9 Counterparts. This Agreement may be executed in counter
parts, each of which shall be deemed an original, but each of which together
shall constitute one and the same Agreement.
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<PAGE> 9
8.10 Severability. If any term, provision covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect, unless such actions would substantially impair the material benefits of
any of the parties under the remaining provisions of this Agreement.
8.11 Further Assurances. At the request of any party (a
"requesting party") to another party hereto, on or at any time after the date
hereof, such other party shall execute and deliver such instruments and
documents requested by the requesting party in order to evidence or better
effectuate, but not to enlarge, the rights of the requesting party under this
Agreement.
8.12 Basswood Group Representative. Each Basswood Group Member
hereby irrevocably appoints Matthew Lindenbaum as such Member's attorney-in-fact
and representative (the "Representative"), to act in such Member's place, stead
and name, to do any and all things and to execute any and all documents and give
and receive any and all notices or instructions in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding any
provision hereof to the contrary, the Company shall be entitled to rely upon, as
being binding on each of the Basswood Group Members, any action taken by the
Representative or upon any document, notice, instruction or other writing given
or executed by the Representative, and any such act, document, notice,
instruction or other writing shall bind and shall be strictly enforceable
against each of the Basswood Group Members.
8.13 Interpretation. This Agreement is the result of
arms-length bargaining between the parties and no provision of this Agreement or
any ambiguity that may be found therein, shall be construed or interpreted
against a party hereto because such party, or its counsel, was the primary
draftsman of such provision.
8.14 Expenses. Each party agrees to bear its or his (as the
case may be) respective costs, expenses and attorneys' fees in connection with
the Litigation and its settlement and dismissal and the negotiation and
preparation of this Settlement Agreement and the performance by such party of
its obligations hereunder.
8.15 Joint and Several. The representations, warranties,
covenants and agreements of the Basswood Group Members contained in this
Agreement shall be joint and several.
(Remainder of this page intentionally left blank.
Signatures of parties follow on next page)
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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have executed and delivered, or
caused to be executed and delivered, this Settlement Agreement on the date first
above written.
FOOTHILL INDEPENDENT BANCORP BASSWOOD FINANCIAL PARTNERS, L.P.,
a California corporation
By: Basswood Partners, L.L.C.,
its General Partner
By: /s/ DONNA MILTENBER By: /s/ MATTHEW LINDENBAUM
----------------------------- ------------------------------
WHITEWOOD FINANCIAL PARTNERS, L.P., BASSWOOD PARTNERS, L.L.C.
By: /s/ MATTHEW LINDENBAUM By: /s/ MATTHEW LINDENBAUM
----------------------------- ------------------------------
1994 GARDEN STATE L.P., BASSWOOD CAPITAL MANAGEMENT L.L.C.,
By /s/ MATTHEW LINDENBAUM By: /s/ MATTHEW LINDENBAUM
----------------------------- ------------------------------
BASSWOOD INTERNATIONAL FUND, INC., JET I, L.P.
By: /s/ MATTHEW LINDENBAUM By: /s/ MATTHEW LINDENBAUM
----------------------------- ------------------------------
/s/ MATTHEW LINDENBAUM /s/ BENNETT LINDENBAUM
- ----------------------------- ------------------------------
Matthew Lindenbaum Bennett Lindenbaum
10
