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UNITED STATES OF AMERICA
BEFORE THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C.
In the Matter of
Docket Nos.
;
PUTRAMASAGUNG
An Institution-Affiliated
Party of The San Francisco
Company, San Francisco,
California,
,’
1
j
i
and
Order of Prohibition, Order
to Cease and Desist and Order
of Assessment of Civil Money
Penalties Issued Upon Consent
P.T. GUNUNG AGUNG, LTD
CORPORATION
Jakarta, Indonesia
98-023-E-I
98-023-B-I
98-023-CMP-I
98-023-B-FB
98-023-CMP-FB
;
1
WHEREAS, pursuant to sections 8(b) and 8(e) of the Federal
Deposit Insurance Act, as amended
(the "FDI Act") (12 U.S.C.
88 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.
5 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
Corporation
("Masagung") and P.T. Gunung Agung, Ltd.
(,,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 sea.), in connection
with GA's acquisition of beneficial ownership of shares of The
San Francisco Company, San Francisco, California
(the "Company");
-2WHEREAS, 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. §§ 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. 5 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,
-A-
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 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. 5 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. § 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. § 1818(e) (7) (A));
(c)
from violating any voting agreement previously
approved by the appropriate Federal banking agency; or
-4(d) from voting for a director, or from serving or
acting as an institution-affiliated
3(u) of the FDI Act
party as defined in section
(12 U.S.C. § 1813(u)), including serving as
an officer, director, or employee.
2.
agreement
Masagung and GA shall enter into the voting trust
(the "Voting Trust Agreement") that is attached hereto
within ten (10) days of the date of this Order, and further:
(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.
-53.
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 within five (5) days of the
consummation of the sale or other disposition of Masagungls
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)
-6of 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 I
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.
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
2oth & C Streets, N.W.
Washington, DC 20551
-7With 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:
(cl
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.
Clear-y, Gottlieb, Steen & Hamilton
2000 Pennsylvania Avenue, N.W.
Washington, DC 20001-1801
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
-aknown to the Board of Governors concerning the matters addressed
in this Order.
By order of the Board of Governors of the Federal
db-‘+=-,
1998.
P.T. Gunung Agung, LTD
Corporatio
By>//
BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM
Secretary of the Board
Voting Trust Agreement
:_3.1%30 , 1998, by and among
This Voting Trust Agreement is entered into as of
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 3 1,027,302 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
become effective upon the execution and delivery of this Voting Trust Agreement and the receipt
1
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100598/1535/22692.00009
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 forth 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.
Votine 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
Agreement dated as of
, 1998, by and among Putra Masagung, P.T. Gunung Agung
2
1111115080.07.00
100598/1535/22692.00009
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 of 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
3 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.
. . .
DJjV
. 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.
4.
3
1111115080.07.00
100598~1535~22692.00009
JJissolution 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 depository
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.
5.
Resienation or Removal of Trustee. (a) The Trustee may at any time resign by
6.
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.
Successor Trustee. In the event of the resignation, death or removal of the
7.
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”).
8.
Y&&&&Ids
and Trustee Qualificatim.
(a) The Trustee, acting in his absolute discretion, shall have the exclusive right to
4
1111115080.07.00
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.
The Trustee shall exercise his right to nominate and to vote to elect
0)
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.
No person other than the Trustee shall have any voting right in respect of
(c)
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.
and Tern..
.
.
(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 othenvise 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)
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.
5
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100598/1535/22692.00009
.(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
ll/ 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 2055 1, 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
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
G
1111115080.07.00
100598/1535/22692.00009
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.
.
ensron of Tm . The Grantors and the Trustee may not extend the duration of
10.
this Voting Trust Agreement for an additional period without the prior approval of the Board and
the CDFI.
11.
mses
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.
Jdabilitv of Trustee. The Trustee shall not be liable by reason of any matter or
12.
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.
(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 Indemnified Claims
1111115080.07.00
100598~1535/22692.00009
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.
n for Servrces . 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 MatteB .
(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.
* A!zremunsdrctton.
.
-**
16.
marts. . &&re
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.
8
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100598/1535/22692.00009
Notices. Any notice to or communication with any of Mr. Masagung, GA, the
17.
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 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-l 121
Telephone:
818-768-8100
Tele’copier:
818-768-8802
.
with a copy to
Brobeck Phleger 8r.Harrison LLP
Attn: J. Michael Shepherd, Esq.
One Market Street
San Francisco CA 94105
Telephone:
415-442-0900
Telecopier:
415-442-1010
Mr. hlasagung
Mr. Putra Masagung
c/o Guthrie GTS Limited
115 Amoy Street #02-00
Singapore 069935
Telephone: 65-466-2555
Telecopier: 65-224-92 11
with a copy to
Graham & James LLP
Attn: Nicholas Unkovic, Esq.
One Maritime Plaza, Suite 300
San Francisco CA 94111
Telephone:
4 15-954-027s
Telecopier:
415-391-2493
9
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100598/1535/22692.00009
, .
GA
PT Gunung Agung
Attn: Mr. Lego Nirwhono
JL. MH. Thamrin
No. 55 Lantai 5
Jakarta 10350, Indonesia
6221-314-2007
Telephone:
6221-230-1285
Telecopier:
with a copy to
Cleat-y, Gottlieb, Steen & Hamilton
Attn: John C. Murphy, Jr., Esq.
2000 Pennsylvania Avenue, N.W.
Washington DC 20001-1801
202-974-1580
Telephone:
202-974-1999
Telecopier:
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 2055 1
202-452-3564
Telephone:
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
916-322-1570
Telephone:
916-324-2011
Telecopier:
10
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100598/1535/22692.00009
FDIC
Federal Deposit Jnsurance Corporation
Attn: Ms. Cathy Grail
25 Ecker Street, Suite 1900
San Francisco CA 94 1OS
Telephone:
415-546-0160
Telecopier:
415-808-7940
18. Goveminp J,aw. 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.
JN 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 b *
Number of Shares to be
deposited hereunder
PUTRA MAS AGUN&&
14,426,456
Number of Shares to be
deposited hereunder
16,600,846
PT GUNUNG AGUNG
BY
Name:
Title:
, as Trustee
Robb Evans
11
1111115080.07.00
100598/1535/22692.00009
FDIC
. Federal Deposit Insurance Corporation
Attn: Ms. Cathy Crail
25 Ecker Street, Suite 1900
San Francisco CA 94105
Telephone:
415-546-0160
Telecopier:
4 1S-808-7940
18. Gover&r J,aw. 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.
M 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 of Shares to be
PUTRA MASAGUNG
deposited hereunder
14,426,456
Number of Shares to be
deposited hereunder
PT GUNUNG AGUNG
16,600,846
Name:
Title:
q
11
lllll15Q0Q.Q7.QQ
100598/1535/22692.00009
as Trustee