-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TE0Anm96k4NWkdJyUn2EpaYksRx4jfG9YcNcbLQaBjiZYHqlvgxlXGmPereL8z00 qMXlx+qOlrB1dehWV77buA== 0000899140-99-000229.txt : 19990407 0000899140-99-000229.hdr.sgml : 19990407 ACCESSION NUMBER: 0000899140-99-000229 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990406 GROUP MEMBERS: BASSWOOD PARTNERS L P ET AL GROUP MEMBERS: BENNETT LINDENBAUM GROUP MEMBERS: MATTHEW LINDENBAUM SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOOTHILL INDEPENDENT BANCORP CENTRAL INDEX KEY: 0000718903 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 953815805 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-47741 FILM NUMBER: 99587833 BUSINESS ADDRESS: STREET 1: 510 S GRAND AVE CITY: GLENDORA STATE: CA ZIP: 91741 BUSINESS PHONE: 9095999351 MAIL ADDRESS: STREET 1: 510 S. GRAND AVENUE CITY: GLENDORA STATE: CA ZIP: 91741 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BASSWOOD PARTNERS L P ET AL CENTRAL INDEX KEY: 0000942793 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 645 MADISON AVENUE STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 MAIL ADDRESS: STREET 1: 645 MADISON AVENUE STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 AMENDMENT NO. 8 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 8)* Foothill Independent Bancorp ---------------------------- (Name of Issuer) Common Stock, par value $.01 ---------------------------- (Title of Class of Securities) 344905104 --------- (CUSIP Number) Thomas M. Cerabino, Esq., Willkie Farr & Gallagher, 787 Seventh Avenue, New York, New York 10019 (212) 728-8000 -------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 31, 1999 -------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box . Check the following box if a fee is being paid with the statement (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-l(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ------------------- ----------------- CUSIP No. 344905104 Page 2 of 7 Pages - ------------------- ----------------- - ----------- -------------------------------------------------------------------- 1 NAME OF REPORT PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Basswood Partners, L.L.C. - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING 553,421 PERSON WITH --------- ------------------------------------------------ 8 SHARED VOTING POWER --------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 553,421 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 553,421 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.34 % - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - ----------- -------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 2 of 7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D - ------------------- ----------------- CUSIP No. 344905104 Page 3 of 7 Pages - ------------------- ----------------- - ----------- -------------------------------------------------------------------- 1 NAME OF REPORT PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Matthew Lindenbaum - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - --------------------- --------- ------------------------------------------------ NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING 553,421 PERSON WITH --------- ------------------------------------------------ 8 SHARED VOTING POWER --------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 553,421 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 553,421 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.34% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ----------- -------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 3 of 7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D - ------------------- ----------------- CUSIP No. 344905104 Page 4 of 7 Pages - ------------------- ----------------- - ----------- -------------------------------------------------------------------- 1 NAME OF REPORT PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Bennett Lindenbaum - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - --------------------- --------- ------------------------------------------------ NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING 553,421 PERSON WITH --------- ------------------------------------------------ 8 SHARED VOTING POWER --------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 553,421 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 553,421 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.34% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ----------- -------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 4 of 7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. The purpose of this Amendment No. 8 to the previously filed Schedule 13D is to report a change in the disclosure set forth in Item 4 (Purpose of Transaction) as more fully described below. Item 1. Security and Issuer - ------- ------------------- No change. Item 2. Identity and Background - ------- ----------------------- This Statement has been filed on behalf of the Reporting Persons, namely Basswood Partners, L.L.C. ("Basswood"), a Delaware limited liability company, and Matthew Lindenbaum and Bennett Lindenbaum, the managing members of Basswood. The principal business address of each of the Reporting Persons is 645 Madison Avenue, 10th Floor, New York, New York 10022. Basswood is the general partner of Basswood Financial Partners, L.P., a Delaware limited partnership (the "Partnership") and Whitewood Financial Partners, L.P., a Delaware limited partnership ("Whitewood"), and is the investment general partner of certain partnerships (including Jet I, L.P., a Delaware limited partnership ("Jet I")), which may from time to time acquire Shares. Basswood Capital Management, LLC (of whom Matthew Lindenbaum and Bennett Lindenbaum are managing members) acts as investment manager to Basswood International Fund, Inc., a Cayman Islands exempted company ("Basswood International") and acts as advisor to several managed accounts. The Partnership, Basswood International, Whitewood and Jet I are referred to collectively as the "Accounts." As of the date hereof, 445,738 Shares are owned of record by the Partnership, 4,608 Shares are owned of record by Whitewood, 22,292 Shares are owned of record by Jet, 80,683 Shares are owned of record by Basswood International and 100 Shares are owned of record by Bennett Lindenbaum. From time to time, Shares may be sold between Accounts in the ordinary course of investment business. Messrs. Matthew Lindenbaum and Bennett Lindenbaum also have investment discretion over certain other managed accounts which do not currently own Shares but which may in the future buy and sell Shares from time to time. During the last five years, none of the Reporting Persons nor any of the Accounts has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violations with respect to such laws. Each of Messrs. Matthew Lindenbaum and Bennett Lindenbaum is a citizen of the United States. Item 3. Source and Amount of Funds or Other Considerations - ------- -------------------------------------------------- As of the date hereof, each of the Reporting Persons may be deemed to beneficially own 553,421 Shares, all of which Shares are held of record by the Accounts (other than 100 Shares which are owned of record by Bennett Lindenbaum). The Shares have been purchased in open market transactions at an aggregate cost of $5,310,185.31. The funds for the purchase of the Shares held by the Accounts and Mr. Lindenbaum have come from the various Accounts' respective working capital. No leverage was used to purchase any of the Shares. However, one or more of the Accounts' working capital may include the proceeds of margin loans entered into in the ordinary course of business with Goldman, Sachs & Co., such loans being secured by the securities owned by such Accounts. Item 4. Purpose of Transaction - ------- ---------------------- All Shares beneficially owned by the Reporting Persons were acquired for, and are being held for, investment purposes. Page 5 of 7 Pages On March 31, 1999, Basswood Financial Partners filed a Verified Petition for Peremptory Writ of Mandate in the Superior Court of California, Los Angeles County (the "Petition"), against Foothill pursuant to Sections 1600 and 1601 of the California General Corporation Law and Section 1085 of the California Code of Civil Procedure. The Petition asserts that, among other things, Foothill has wrongfully refused to provide the list of shareholders and corporate records that Basswood Financial Partners requested in its letter to Foothill on March 17, 1999. The Petition seeks a Writ of Mandamus commanding Foothill to, among other things, permit inspection and copying of the shareholder and corporate records requested by Basswood Financial Partners in its March 17, 1999 letter. A copy of the Petition is attached hereto as Exhibit B and incorporated herein by reference. Except as discussed above, the Reporting Persons otherwise have no plan or proposal which relates to, or would result in, any of the actions enumerated in Item 4 of the instructions to Schedule 13D. Item 5. Interest in Securities of the Company - ------- ------------------------------------- (a)-(b) As of the date hereof, the Reporting Persons each may be deemed to be the beneficial owners of 553,421 Shares. As of March 19, 1999 (according to the Company's Form 10-Q for the quarter ended December 31, 1998), there were a total of 5,923,263 Shares of Common Stock outstanding. Therefore, the Reporting Persons collectively may be deemed to be the beneficial owners of approximately 9.34% of the outstanding Shares as of such date. The Reporting Persons collectively have the power to vote, direct the vote, dispose of or direct the disposition of all the Shares of which they may be deemed to be the beneficial owners. (c) The trading date, number of Shares purchased and price per Share (excluding commissions, if any) for all transactions by the Reporting Persons for the 60-day period preceding March 31, 1999 through the date hereof are set forth in Exhibit B hereto. (d) Other than the Reporting Persons and the Accounts, with respect to the Shares beneficially owned by them, no other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds of sale of, such Shares. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect - ------- --------------------------------------------------------------------- to Securities of the Company ---------------------------- No change. Item 7. Material to be Filed as Exhibits - ------- -------------------------------- The following exhibits are filed hereto: Exhibit A: An agreement relating to the filing of a joint statement as required by Rule 13d-1(k) under the Securities Exchange Act of 1934 Exhibit B: A copy of the Verified Petition for Peremptory Writ of Mandate filed by Basswood Financial Partners on March 31, 1999 in Superior County, County of Los Angeles, California Exhibit C: A description of the transactions in the Shares that were effected by the Reporting Persons during the 60-day period preceding March 31, 1999 through the date hereof Page 6 of 7 Pages SIGNATURE After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: April 6, 1999 BASSWOOD PARTNERS, L.L.C. By: /s/ Matthew Lindenbaum -------------------------- Name: Matthew Lindenbaum Title: Managing Member By: /s/ Bennett Lindenbaum -------------------------- Name: Bennett Lindenbaum Title: Managing Member /s/ Matthew Lindenbaum ---------------------- Matthew Lindenbaum /s/ Bennett Lindenbaum ---------------------- Bennett Lindenbaum Page 7 of 7 Pages EXHIBIT INDEX Exhibit Title - ------- ----- Exhibit A: An agreement relating to the filing of a joint statement as required by Rule 13d-1(k) under the Securities Exchange Act of 1934 Exhibit B: A copy of the Verified Petition for Peremptory Writ of Mandate filed by Basswood Financial Partners on March 31, 1999 in Superior County, County of Los Angeles, California Exhibit C: A description of the transactions in the Shares that were effected by the Reporting Persons during the 60-day period preceding March 31, 1999 through the date hereof. EX-99.1 2 JOINT FILING AGREEMENT EXHIBIT A AGREEMENT The undersigned agree that this Schedule 13D relating to the Common Stock of Foothill Independent Bancorp shall be filed on behalf of each of the undersigned. Dated: April 6, 1999 BASSWOOD PARTNERS, L.L.C. By: /s/ Matthew Lindenbaum -------------------------- Name: Matthew Lindenbaum Title: Managing Member By: /s/ Bennett Lindenbaum -------------------------- Name: Bennett Lindenbaum Title: Managing Member /s/ Matthew Lindenbaum ---------------------- Matthew Lindenbaum /s/ Bennett Lindenbaum ---------------------- Bennett Lindenbaum EX-99.2 3 VERIFIED PETITION FOR PREEMPTORY WRIT OF MANDATE EXHIBIT B LATHAM & WATKINS Marc W. Rappel (Bar No. 097032) Amos E. Hartston (Bar No. 186471) 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 Of Counsel: WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, New York 10019 (212) 728-8000 Attorneys for Petitioner Basswood Financial Partners, LP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BASSWOOD FINANCIAL PARTNERS, LP, CASE NO. _____________________ Petitioner, VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE v. Petition Filed: March 31, 1999 Trial Date: None Set FOOTHILL INDEPENDENT BANCORP., Respondent. - ------------------------------------- _______________________________________ VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE ------------------------------------------------ For its verified petition against Respondent Foothill Independent Bancorp ("Foothill" or the "Company"), Basswood Financial Partners, LP ("Basswood" or "Petitioner") alleges as follows: 1. Pursuant to Section 1085 of the California Code of Civil Procedure and Sections 1600 and 1601 of the California General Corporation Law (the "CGCL" or "Act"), Basswood petitions for a peremptory writ of mandamus compelling Foothill to produce for inspection and copying (a) its shareholder list and related records and (b) certain of its accounting books and records and minutes of meetings. Despite Basswood's entitlement to such corporate records, Foothill has without justification refused to comply with Basswood's request and its obligations under the Act. In fact, Foothill appears to be embarked on a scheme to deprive Basswood of its valuable voting rights under California law. Immediate relief is required to protect Basswood's rights as a Foothill shareholder, including its right to communicate with other shareholders. The Parties ----------- 2. Basswood is a Delaware limited partnership with its principal place of business at 645 Madison Avenue, New York, New York 10022. Basswood is the record owner of 445,738 shares, or approximately 7.5%, of common stock of Foothill. As a shareholder owning greater than 5% of Foothill's common stock, Basswood is entitled to seek shareholder records as a matter of right pursuant to ss. 1600(a) of the CGCL. 3. Foothill is a California corporation with its principal offices at 510 South Grand Avenue, Glendora, CA 91741. Foothill's principal operating subsidiary is Foothill Independent Bank, which has branches throughout the Los Angeles area. The Statutory Framework ----------------------- 4. Sections 1600 through 1605 of the CGCL govern the obligations of California corporations to maintain corporate records, the rights of shareholders to inspect and copy such records, and judicial proceedings to enforce those shareholders' rights. Section 1600 of the CGCL provides (with emphasis supplied): 1 (a) A shareholder or shareholders holding at least 5 percent in the aggregate of the outstanding voting shares of a corporation or who hold at least 1 percent of those voting shares and have filed a Schedule 14A with the United States Securities and Exchange Commission (or in case the corporation is a bank the deposits of which are insured in accordance with the Federal Deposit Insurance Act, have filed a Form F-6 with the appropriate federal bank regulatory agency) shall have an absolute right to do either or both of the following: (1) inspect and copy the record of shareholders' names and addresses and shareholdings during usual business hours upon five business days' prior written demand upon the corporation, or (2) obtain from the transfer agent for the corporation, upon written demand and upon the tender of its usual charges for such a list (the amount of which charges shall be stated to the shareholder by the transfer agent upon request), a list of the shareholders' names and addresses, who are entitled to vote for the election of directors, and their shareholdings, as of the most recent record date for which it has been compiled or as of a date specified by the shareholder subsequent to the date of demand. The list shall be made available on or before the later of five business days after the demand is received or the date specified therein as the date as of which the list is to be compiled. A corporation shall have the responsibility to cause its transfer agent to comply with this subdivision. (footnotes omitted) (italics in original; emphasis added). 5. The official comment to Section 1600 explicitly states that the section "expands inspection rights by providing a mandatory right to inspect the stock list for shareholders who have a significant ownership interest in the corporation or who, in addition to a certain specified ownership interest in the corporation, have instituted a proxy contest with respect to the election of directors." As a record stockholder of more than 5% of Foothill, Basswood has a "significant ownership interest" within the meaning of Section 1600(a), and an absolute right to inspect Foothill's shareholder records. 6. Section 1601(a) of the Act, entitled "Inspection of Corporate Records," provides shareholders with a right to inspect the accounting books and records and minutes of the corporation, and states: The accounting books and records and minutes of proceedings of the shareholders and the board and committees of the board of any domestic corporation, and of any foreign corporation keeping any such records in this state or having its principal executive office in this state, shall be open to inspection upon the written demand on the corporation of any shareholder or holder of a voting trust certificate at any reasonable time during usual business hours, for a purpose reasonably related to such holder's interest as a shareholder or as the holder of such voting trust certificate. The right of inspection created by this subdivision shall extend to the records of each subsidiary of a corporation subject to this subdivision. 2 7. Section 1603 of the Act permits a shareholder who has been denied access to corporate records identified in Sections 1600 and 1601 of the Act to seek judicial relief: Upon refusal of a lawful demand for inspection, the superior court of the proper county, may enforce the right of inspection with just and proper conditions . . . 8. Section 1604, which was enacted to discourage corporations from refusing in bad faith to comply with the right of inspection, further provides that a petitioner can seek expenses and reasonable attorneys' fees incurred as a result of proceeding under Sections 1600 and 1601: In any action or proceeding under section 1600 or Section 1601, if the court finds the failure of the corporation to comply with a proper demand thereunder was without justification, the court may award an amount sufficient to reimburse the shareholder or holder of a voting trust certificate for the reasonable expenses incurred by such holder, including attorneys' fees, in connection with such action or proceeding. Basswood Requested Foothill's Corporate Records. - ------------------------------------------------ 9. On March 17, 1999, Basswood wrote to Foothill's President and Chief Executive Officer, Mr. George E. Langley, requesting "the right to inspect and copy the records of the Company described in Sections 1600 (a)(1) and 1600(a)(2) and in Section 1601 of the CGCL during regular business hours on or before the sixth business day following the date of this letter." A copy of Basswood's March 17 letter and the accompanying Annex A (the "March 17 Request") is attached hereto as Exhibit A. The March 17 Request asked Foothill to "provide to [Basswood] the information and permit us to take the other actions set forth in Annex A hereto [specifying the requested stockholder information in greater detail] as expeditiously as possible." 10. Although Basswood's entitlement to shareholder records under Section 1600(a) of the Act was automatic, Basswood set forth its purpose in seeking the records identified in the March 17 Request: We wish to inspect the Company's shareholder list materials so that we may communicate with other shareholders of the Company on matters relating to our mutual interests as shareholders, including methods of improving the Company's financial performance and maximizing shareholder value. 3 11. The March 17 Request explained that, in Basswood's view, the Company's performance has been disappointing: Basswood Financial Partners LP believes that the financial performance of the Company has been disappointing. Foothill's core return on equity, core return on assets and efficiency ratio are all significantly worse than the performance of the Western Banks Average as shown in the SNL Quarterly Bank Digest. Basswood Financial Partners believes that the best means of maximizing value for the Company's shareholders is to take advantage of the current consolidation trend in the banking industry and to sell the Company. 12. Basswood also identified in detail -- in Annex A to the March 17 letter -- the corporate records that it sought. Basswood believes that the information identified in Annex A to the March 17 letter is in the Company's possession or can readily be obtained from outside sources. (Basswood is, of course, willing to reimburse the Company's reasonable costs of obtaining the information). For example, the Company has recently obtained a list of non- objecting beneficial holders (the "NOBO" list). This is a record of Foothill's beneficial shareholders that do not object to their identities being disclosed. 13. The shareholder information identified in Annex A to the March 17 letter includes the following: o a magnetic computer tape list of the shareholders showing the name, address and number of shareholders held by each shareholder; o daily transfer sheets showing changes in names and addresses of, and number of shares held by, shareholders of record; o the list of shareholders held in the name of Cede & Co., and other similar nominees; o information relating to the names of Non-Objecting Beneficial Owners of shares in the form of a print-out and magnetic tape. Upon information and belief, the Company has recently obtained a NOBO list; o stop lists relating to any shares and any changes, any corrections, addition or deletions to the requested shareholder lists;. and o lists of all holders of record owning 1,000 or more shares arranged in descending order as of a recent date. 4 14. The other corporate records identified in Annex A to the March 17 letter include the following: Minutes ------- o All minutes of meetings of Foothill's board of directors and any committees thereof from October 1, 1996 through the present; and o All agendas, minutes and other documents (including any recordings or videotapes) that memorialize or record any matters discussed at any meetings of Foothill's shareholders (whether formal or informal), beginning October 1, 1996 through the present. Accounting Records ------------------ o All accounting and other financial records that were consulted or used by the Company to calculate its efficiency ratio as of December 313, 1998 and the fourth quarter of 1998. To the extent a portion of any record was consulted or used, the entire record should be provided. 15. The shareholder records identified in Annex A are the type of records that virtually all publicly-traded corporations have in their possession or can readily obtain from their agents. As stated above, the NOBO list is already in the Company's possession. 16. Basswood's March 17 Request was joined by Whitewood Financial Partners, LP, the record owner of 4,608 Foothill shares, and Jet I, LP, the record owner of 22,292 Foothill shares. Additionally, the March 17 Request supplemented two previous requests to inspect these corporate records made by Basswood's former general partner in December 1998 and January 1999. Foothill Fails to Comply with Basswood's Request. - ------------------------------------------------- 17. On March 23, 1999, Foothill's President and Chief Executive Officer, Mr. Langley, replied to the March 17 Request. Mr. Langley's letter (hereinafter, the "March 23 Response") (annexed hereto as Exhibit B) allowed Basswood to inspect "a list setting forth the respective names, addresses and shareholdings of all shareholders of record of Foothill (a "Record List"), as of December 31, 1998." The list of record shareholders provided by Foothill, however, is inadequate, because it does not allow Basswood to identify many of Foothill's shareholders. Many of the shareholders on the "Record List" are identified only as Cede & Co. or other similar 5 nominees or brokers, indicating that a number of Foothill shareholders hold their shares in the name of nominees or brokerage houses, and the NOBO list and Cede breakdown are required to identify such shareholders. Thus, the Record List alone does not allow Basswood to communicate with many of Foothill's shareholders. As the NOBO list and other shareholder records identifing such shareholders are in the Company's possession, and Foothill refuses to allow inspection of these records, Foothill has an unfair advantage over Basswood in its ability to communicate with shareholders, and is unfairly withholding information critical to Basswood's ability to communicate with Foothill's shareholder base. 18. The March 23 Response also stated that Basswood was not entitled to inspect the books and records of the Company pursuant to Section 1601 by conclusorily challenging Basswood's purpose: Basswood has failed to assert any real purpose, reasonably related to its interests as a record shareholder of Foothill, for an inspection of Board or shareholder minutes on the financial information referenced in your letter. 19. The March 23 Response asserted that Basswood's purposes are neither genuine nor made in good faith. The March 23 Response also took issue with Basswood's statements regarding the financial underperformance of the Company and with other particulars of Basswood's demand. 20. The Company's failure to make available the requested accounting books and records and minutes for inspection and copying pursuant to Section 1601 of the CGCL is especially disturbing because the Company has recently taken a number of corporate actions that Basswood believes were designed to interfere with Basswood's voting rights under California law. For example, on October 19, 1998, the Company announced it had expanded its board of directors and appointed three new members to Foothill's classified board. There has been no public disclosure as to which of the new directors will be up for reelection at the annual meeting in 1999 or as to which class of directors such three new directors were elected. Additionally, on January 29, 1999, the Company announced its board of directors amended the Company's bylaws to delete the section addressing the nomination by shareholders of candidates to Foothill's board of directors. Furthermore, the Company has recently made statements -- both to Basswood in 6 correspondence and to the public in the form of press releases -- regarding its financial performance. Basswood believes those statements inaccurately portray Foothill's financial performance. Basswood is entitled to access the Company's accounting records and minutes to determine the basis for the Foothill Board's conduct and Foothill's statements regarding its financial performance. Basswood's purpose in seeking records under Section 1601 of the CGCL is proper under California law. Foothill Continues to Refuse Basswood's Requests. - ------------------------------------------------- 21. Basswood Partners LP., Basswood's former general partner, previously requested these corporate records on behalf of Basswood on December 21, 1998 and again on January 27, 1999. (Basswood Partners' prior requests are attached hereto as Exhibits C and D, respectively). Foothill objected to Basswood Partners, LP's previous requests on the basis that Basswood Partners, LP (and its successor as general partner, Basswood Partners, LLC) was not itself a record owner of shares, and Basswood at that time held its shares through street names rather than as record holder. The dispute between the parties prompted Basswood Partners, LLC to file a petition for writ of mandate to compel production of the records. The court denied without prejudice Basswood Partners, LLC's petition for a writ of mandate finding that the foundational criteria to request the records had not been met. In response to the Court's ruling, Basswood converted its shares to shares of record on March 16, 1999, and made the March 17 demand as a record holder. Foothill nevertheless continues to refuse to provide the shareholder and other corporate records sought by Basswood. FIRST CAUSE OF ACTION (For Shareholder Records under ss. 1600(a) of the CGCL) ------------------------------------------------------- 22. Petitioner incorporates by reference the allegations of paragraphs 1 through 21 above. 23. Petitioner's March 17 Request constitutes a lawful demand for corporate records identified in Section 1600(a) of the Act. 24. Basswood is the record owner of in excess of 5% of Foothill's outstanding shares. 7 25. The March 17 Request described in detail and with particularity the proper and lawful purpose for which Petitioner seeks the shareholder records identified therein -- even though Section 1600(a) does not require that a shareholder such as Basswood provide a proper purpose for seeking access to the Company's shareholder records. 26. Petitioner's purpose in seeking the shareholder list and other records identified in Section 1600(a) and Annex A to the March 17 Request is to communicate with other shareholders regarding, inter alia, the maximizing of value to Foothill's shareholders, the financial performance of Foothill, and Foothill's future financial performance. 27. The records identified in Annex A to the March 17 Request are directly related to Basswood's purpose. In fact, without access to Foothill's shareholder list, including the list of non-objecting beneficial holders (the NOBO list), Basswood will be unable to communicate with other shareholders regarding their mutual interest concerning Foothill and the maximization of shareholder value. 28. Foothill's response to the March 17 Request has made it clear that Foothill disagrees with Basswood's belief regarding the financial performance of the Company. Such a disagreement, however, does not constitute a proper, reasonable or lawful basis to deny Petitioner access to the records described in Section 1600(a) of the Act and detailed in Annex A to the March 17 letter. If Foothill and the Foothill Board believe that Basswood is mistaken in its views about the past and future performance of the Company and the proper means to maximize shareholder value, then the appropriate remedy is to put their case to Foothill's shareholders; it is not lawful, justifiable or proper under the Act to quash the debate by denying Petitioner the right to communicate with other Foothill shareholders. 29. Petitioner has no plain, speedy or adequate remedy at law. 30. Foothill's refusal to provide Petitioner access to the shareholder list and other records identified in Section 1600(a) of the CGCL has no reasonable factual or legal basis; rather, such conduct amounts to a bad faith effort to prevent Petitioner from communicating with other Foothill shareholders. 8 31. Pursuant to Section 1604 of the Act, in addition to being compelled to produce the shareholder records requested in the March 17 Request, Foothill should also be ordered to pay costs incurred by Petitioner in bringing these proceedings, including reasonable attorney's fees. SECOND CAUSE OF ACTION (For Corporate Records Pursuant to ss. 1601 of the CGCL) -------------------------------------------------------- 32. Petitioner incorporates by reference the allegations of paragraphs 1 through 31 above. 33. Petitioner's March 17 Request sought access to certain of Foothill's accounting books and records and minutes within the meaning of Section 1601 of the CGCL. 34. Basswood's purpose in seeking access to the records described in detail in Annex A to the March 17 Request is lawful and proper and is reasonably related to Basswood's interests as a shareholder. The Company's accounting books and records and minutes will, inter alia, disclose the basis for, and reasons behind, the board's recent appointment of three new members to the Foothill's classified board and the recent amendments to the Company's bylaws. In addition, the records will disclose the basis for the Company's statements regarding its financial performance. 35. Petitioner has no plain, speedy or adequate remedy at law. 36. Foothill's refusal to provide access to corporate records under Section 1601 has no reasonable factual or legal basis; rather, such conduct amounts to a bad faith effort to prevent Petitioner from communicating with other Foothill shareholders and investigating conduct that Basswood believes is designed to interfere with its voting rights. 37. Pursuant to Section 1604 of the Act, in addition to being compelled to produce the corporate records requested (and identified in ss. 1601 of the Act), Foothill should also be ordered to pay costs incurred by Petitioner in bringing these proceedings, including reasonable attorney's fees. WHEREFORE, Petitioner requests judgment as follows: (a) That Respondent be cited to appear to answer this Petition; 9 (b) That a Writ of Mandamus issue forthwith commanding Foothill to permit Petitioner, and its agents and attorneys, to inspect and copy, within 5 business days, records requested in Petitioner's March 17 Request and Annex A thereto, including shareholder records under Section 1600(a) including: (1) Magnetic computer tape lists of the shareholders of the Company as of the most recent available date showing the name and address of, and number of shares held by, each shareholder of record, together with such computer processing data as is necessary for Basswood Financial Partners to make use of such magnetic computer tape, and printouts of such magnetic computer tape for verification purposes; (2) All daily transfer sheets showing changes in the names and addresses of, and number of shares held by, shareholders of record of the Company which are in (or come into) the possession or control of the Company or its transfer agent, or which can reasonably be obtained from brokers, dealers, banks, clearing agencies or voting trustees or their nominees, from the date of the shareholder lists referred to in paragraph (a) above through the date of the inspection; (3) All information in, or which comes into, the possession or control of the Company or its transfer agent, or which can reasonably be obtained by brokers, dealers, banks, clearing agencies or voting trustees or their nominees, concerning the names and addresses, and number of shares held by, the participating brokers and banks holding shares in the individual nominee names of Cede & Co., and other similar nominees, including omnibus proxies and all "Weekly Security Position Listing Daily Closing Balances" reports issued by The Depository Trust Company, and a list or lists containing the name and address of, and the number of shares attributable to, any participant in any Company employee stock ownership, dividend reinvestment, stock purchase or comparable plan in which the 10 decision how to vote or whether to dispose of shares held by such plan is made, directly or indirectly, individually or collectively, by the participants in the plan; (4) All information in, or which comes into, the possession or control of the Company or its transfer agent, or which can reasonably be obtained from brokers, dealers, banks, clearing agencies or voting trustees or their nominees, disclosing the names of the Non-Objecting Beneficial Owners of shares ("NOBO's") in the format of a printout and magnetic tape in descending order balance (such information is readily available to the Company under Rule 14b-1(c) of the Securities Exchange Act of 1934, as amended, from ADP Proxy Services); (5) A stop list or stop lists relating to any shares and any changes, corrections, additions or deletions from the date of the shareholder lists referred to in paragraph (a) above through the date of the inspection; and (6) Lists of all holders of record of shares owning 1,000 or more shares arranged in descending order as of the most recent available date. (c) That a Writ of Mandamus issue forthwith commanding Foothill to permit Petitioner, and its agents and attorneys, to inspect and copy, within five (5) business days, records requested in Petitioner's March 17 Request and Annex A thereto, including Foothill's accounting books and minutes of proceedings under Section 1601 including: (1) Minutes a) All minutes of meetings of Foothill's board of directors and any committees thereof from October 1, 1996 through the present; and b) All agendas, minutes and other documents (including any recordings or videotapes) that memorialize or record any matters discussed at any meetings of Foothill's shareholders (whether formal or informal), beginning October 1, 1996 through the present. 11 (2) Accounting Records ------------------ a) All accounting and other financial records that were consulted or used by the Company to calculate its efficiency ratio as of December 31, 1998 and the fourth quarter of 1998. To the extent a portion of any record was consulted or used, the entire record should be provided. (d) An order compelling Foothill to pay costs, including reasonable attorney's fees, incurred by Petitioner in prosecuting this action pursuant to ss. 1604 of the CGCL; and 1. Any other relief that the Court deems just and proper. Dated: March 31, 1999 Respectfully submitted, LATHAM & WATKINS Marc W. Rappel Amos E. Hartston By:_________________________________ Amos E. Hartston Attorneys for Petitioner Basswood Financial Partners, LP Of Counsel: WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, New York 10019 12 VERIFICATION ------------ I am a managing member of Basswood Partners, LLC, general partner of Basswood Financial Partners, LP, and am authorized to make this verification for and on behalf of Basswood Financial Partners, LP, and I make this verification for that reason. I have read the foregoing document. I am informed and believe and on that ground allege that the matters stated in it are true. ____________________________ Matthew Lindenbaum Subscribed and sworn to before me this ____ day of March 1999 13 LATHAM & WATKINS Marc W. Rappel (Bar No. 097032) Amos E. Hartston (Bar No. 186471) 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Phone: (213) 485-1234 / Facsimile: (213) 891-8763 Of Counsel: WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, New York 10019 Phone: (212) 728-8000 Attorneys for Petitioner Basswood Financial Partners, LP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BASSWOOD FINANCIAL PARTNERS, LP, CASE NO. ______________ Date: April 15, 1999 Petitioner, Time: 9:30 a.m. Dept: Judge: v. NOTICE OF MOTION AND MOTION FOR ISSUANCE OF PEREMPTORY WRIT OF MANDATE FOOTHILL INDEPENDENT BANCORP., [Corp.Code ss.ss. 1600, et.seq; Code Civ. Proc. ss.ss. 1085, et. seq] Respondent. Petition Filed: March 31, 1999 Trial Date: None Set - ----------------------------------- TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 15, 1999, at 9:30 a.m., or as soon thereafter as counsel may be heard, in Dept. ___ of the above-entitled Court, located at 111 North Hill Street, Los Angeles, California 90012, Petitioner Basswood Financial Partners, LP ("Basswood") will and hereby does move this Court, pursuant to Sections 1600 et. seq. of the California Corporations Code and Sections 1085 et. seq. of the California Code of Civil Procedure, and for the following: 1. That a Peremptory Writ of Mandate issue forthwith ordering that Respondent Foothill Independent Bancorp. ("Foothill") permit Basswood to inspect and copy Foothill's record of shareholders' names and addresses and shareholdings (including such records maintained by Foothill's transfer agent, ChaseMellon shareholder services (the "Transfer Agent")), including the following: (a) Magnetic computer tape lists of the shareholders of the Company as of the most recent available date showing the name and address of, and number of shares held by, each shareholder of record, together with such computer processing data as is necessary for Basswood Financial Partners to make use of such magnetic computer tape, and printouts of such magnetic computer tape for verification purposes; (b) All daily transfer sheets showing changes in the names and addresses of, and number of shares held by, shareholders of record of the Company which are in (or come into) the possession or control of the Company or its transfer agent, or which can reasonably be obtained from brokers, dealers, banks, clearing agencies or voting trustees or their nominees, from the date of the shareholder lists referred to in paragraph (a) above through the date of the inspection; (c) All information in, or which comes into, the possession or control of the Company or its transfer agent, or which can reasonably be obtained by brokers, dealers, banks, clearing agencies or voting trustees or their nominees, concerning the names and addresses, and number of shares held by, the participating brokers and banks holding shares in the individual nominee names of Cede & Co., and other similar nominees, including omnibus proxies and all "Weekly Security Position Listing Daily Closing Balances" reports issued by The Depository Trust Company, and a list or lists containing the name and address of, and the number of 2 shares attributable to, any participant in any Company employee stock ownership, dividend reinvestment, stock purchase or comparable plan in which the decision how to vote or whether to dispose of shares held by such plan is made, directly or indirectly, individually or collectively, by the participants in the plan; (d) All information in, or which comes into, the possession or control of the Company or its transfer agent, or which can reasonably be obtained from brokers, dealers, banks, clearing agencies or voting trustees or their nominees, disclosing the names of the Non-Objecting Beneficial Owners of shares ("NOBO's") in the format of a printout and magnetic tape in descending order balance (such information is readily available to the Company under Rule 14b-1(c) of the Securities Exchange Act of 1934, as amended, from ADP Proxy Services); (e) A stop list or stop lists relating to any shares and any changes, corrections, additions or deletions from the date of the shareholder lists referred to in paragraph (a) above through the date of the inspection; and (f) Lists of all holders of record of shares owning 1,000 or more shares arranged in descending order as of the most recent available date. 2. That a Peremptory Writ of Mandate issue forthwith ordering Foothill to permit Basswood and its agents and attorneys to inspect and copy those corporate books and records requested in Basswood's March 17, 1999 request, specifically including inspection of the following: (a) Minutes ------- (1) All minutes of meetings of Foothill's board of directors and any committees thereof from October 1, 1996 through the present; and (2) All agendas, minutes and other documents (including any recordings or videotapes) that memorialize or record any matters discussed at any meetings of Foothill's shareholders (whether formal or informal), beginning October 1, 1996 through the present. (b) Accounting Records ------------------- 3 (1) All accounting and other financial records that were consulted or used by the Company to calculate its efficiency ratio as of December 31, 1998 and the fourth quarter of 1998. To the extent a portion of any record was consulted or used, the entire record should be provided. An order compelling Foothill to pay costs, including reasonable attorneys' fees, incurred by Basswood in prosecuting this action, in accordance with Section 1604 of the California Corporations Code; and any other relief that the Court deems just and proper. This Motion is and will be based on this Notice, the concurrently filed memorandum of points and authorities and declaration of Matthew Lindenbaum filed in support hereof, all other pleadings and records on file in this action, and such other evidence and argument the Court may consider. Dated: March 31, 1999 Respectfully submitted, LATHAM & WATKINS Marc W. Rappel Amos E. Hartston By __________________________________ Amos E. Hartston Attorneys for Petitioner Basswood Financial Partners, LP Of Counsel: WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, New York 10019 4 EX-99.3 4 DESCRIPTION OF TRANSACTIONS IN SHARES EXHIBIT C TRANSACTIONS IN SHARES DURING THE PERIOD COMMENCING FROM THE 60-DAY PERIOD PRECEDING MARCH 31, 1999 THROUGH THE DATE HEREOF NONE -----END PRIVACY-ENHANCED MESSAGE-----