EXHIBIT 3
Settlement Agreement
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between
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Bank Plus Corporation
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and
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La Salle Financial Partners, L.P.,
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La Salle Capital Management, Inc., Talman Financial, Inc.,
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Richard J. Nelson and Peter T. Kross
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[LETTERHEAD OF BANK PLUS CORPORATION]
March 26, 1999
La Salle Financial Partners, L.P.
La Salle Capital Management, Inc.
Talman Financial, Inc.
Richard J. Nelson
Peter T. Kross
Re: Settlement Agreement
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Gentlemen:
Each of you is either a stockholder (the "Stockholder") of Bank Plus
Corporation (the "Company"), an affiliate thereof, or a director, officer,
member or general partner of the Stockholder or such affiliate (the Stockholder,
its affiliates, and their respective directors, officers, members and general
partners are referred to herein as the "La Salle Group"). The Stockholder has
requested that the Board of Directors (the "Board") of the Company (a) appoint
an independent stockholder representative as a director of the Company for a
term expiring at the Company's annual meeting of stockholders in the year 2000,
(b) amend Section 1.2 of the Company's Bylaws (the "Bylaws") to provide that
three or more unaffiliated holders of 20.0% of the Company's outstanding common
stock (the "Common Stock") may call a special meeting of stockholders, (c) amend
Section 1.7 of the Bylaws relating to inspectors of election, (d) amend Section
1.8 of the Bylaws to provide that directors of the Company shall be elected by a
plurality, and (e) amend Section 6.7 of the Bylaws to provide that any action
taken by the stockholders in amending the Bylaws cannot be modified by the Board
without the approval of the Company's stockholders. The text of the proposed
amendments to the Bylaws are attached hereto as Exhibit A and are collectively
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referred to as the "Bylaws Amendments."
The Company and you hereby agree to the following:
1. In response to requests from the La Salle Group and another
stockholder, the Board intends to expand the Board by one additional director
and to fill such vacancy with a nominee satisfactory to both stockholders. The
La Salle Group and such other stockholder have separately agreed with the
Company that Irving R. Beimler ("Mr. Beimler") is an acceptable nominee. No
later than March 25, 1999, the Board shall appoint, subject to the non-objection
of the Office of Thrift Supervision (the "OTS") pursuant to 12 C.F.R. (S)563.585
("OTS Non-Objection"), Irving R. Beimler as a director of the Company for a term
expiring at the Company's annual meeting of stockholders in the year 2000. If
the OTS objects to Mr. Beimler's appointment to the Board or if Mr. Beimler does
not otherwise join the Board, the Board will give first consideration to the
nomination of Peter T. Kross ("Mr. Kross") as a substitute nominee, and, if the
Board approves Mr. Kross as the substitute nominee, the Company shall promptly
submit his nomination for OTS Non-Objection. If the Board does not approve Mr.
Kross as the substitute nominee, the Board and the La Salle Group shall work in
good faith to designate another nominee acceptable to both the La Salle Group
and such other stockholder (the "Substitute Nominee") to serve as a director of
the Company.
The Board is cognizant of its duty to protect the interests of all
of its stockholders in realizing the maximum value of their investment in the
Company, including any value related
March 26, 1999
Page 2
to a disposition of control of the Company (the so-called "control premium").
The appointment of Mr. Kross or the Substitute Nominee to the Board shall be
subject to OTS Non-Objection and to the execution and delivery to the Company by
Mr. Kross or the Substitute Nominee of his or her written resignation from the
Board, effective upon a breach by the La Salle Group of any provision of this
Agreement and upon the termination of this Agreement.
2. No later than April 28, 1999, the Board shall adopt the Bylaws
Amendments and the Board agrees not to modify the Bylaws Amendments while this
Agreement continues in effect.
3. Upon the Board's approval of Mr. Beimler as a Company director,
each of the members of the La Salle Group shall immediately cause the
Stockholder to withdraw its February 25, 1999 notices of intent to nominate a
director and to propose resolutions for stockholder approval at the Company's
1999 annual meeting of stockholders (the "1999 Annual Meeting") and will not
otherwise propose any matters at the 1999 Annual Meeting.
4. Each of the members of the La Salle Group executing this
Agreement hereby agrees that, from the date of the Board's approval of Mr.
Beimler as a Company director through the date of termination of this Agreement,
the La Salle Group shall not, individually or collectively, (a) make, or in any
way participate, directly or indirectly, in any "solicitation" of "proxies" to
vote (as such terms are used in the proxy rules of the Securities and Exchange
Commission) securities of the Company, or seek to advise or influence any person
or entity with respect to any voting of any securities of the Company, provided,
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however, that, subject to paragraph 5 below, Stockholder may vote its securities
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of the Company against any proposal to stockholders made by the Board; (b) call,
or participate in calling, any special meeting of the stockholders of the
Company; or (c) otherwise act alone or in concert with others to seek to control
the management, board of directors or policies of the Company.
5. Notwithstanding anything to the contrary in paragraph 4 hereof,
each of the members of the La Salle Group shall vote all of the securities of
the Company beneficially owned by the La Salle Group for the director nominees
proposed by the Board at the 1999 Annual Meeting.
6. Bank Plus shall reimburse the La Salle Group for up to $50,000
of its out-of-pocket expenses to third parties (including, without limitation,
reasonable attorneys' fees) incurred by the La Salle Group relating to the 1999
Annual Meeting and events regarding this Agreement within ten days after the
Company's receipt of an accounting thereof and supporting documentation
(including documentation from the La Salle Group of fees and expenses incurred
by their outside legal counsel).
7. All parties hereto agree and acknowledge that the Board is
placing material reliance on the terms of this Agreement as a basis of and
condition to the Board's appointment of Mr. Beimler (or Mr. Kross or the
Substitute Nominee, as applicable) as a director of the Company and to the
Board's adoption of the Bylaws Amendments.
8. It is understood and agreed that monetary damages would not be a
sufficient remedy for any breach or threatened breach of this Agreement. Each
party hereto shall be entitled to equitable relief by way of injunction or
specific performance if any other party or any of their respective officers,
directors, investment bankers, attorneys, accountants or other
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March 26, 1999
Page 3
representatives breach, or threaten to breach, any of the provisions of this
Agreement, such remedy by way of equitable relief being cumulative, and not
exclusive, of any other remedies and/or rights that the complaining party shall
be entitled to exercise. It is further understood and agreed that no failure or
delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
9. In the event of any dispute between the parties hereto regarding
the performance or interpretation of this Agreement, the prevailing party shall
be entitled to its reasonable attorneys' fees, costs and other expenses, in
addition to any other relief to which such party may be entitled.
10. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the internal laws of the State of
Delaware, without regard to the principles of conflict of laws.
11. This Agreement shall terminate upon the latest to occur of the
following: (i) October 31, 1999 or (ii) the ending of the first term of office
of Mr. Beimler (or of Mr. Kross or the Substitute Nominee, as applicable, if Mr.
Beimler is not appointed to the Board of the Company).
12. During the term of this Agreement, neither the Company nor any
member of the La Salle Group shall institute any litigation against the other,
except as follows: (a) any party hereto may institute litigation against the
other party (or parties) hereto in the event of, and alleging, a breach of or
default under this Agreement by such other party (or parties); and (b) the
Company may institute litigation against some or all of the members of the La
Salle Group in the event that one or more members of the La Salle Group form,
join or in any way participate in a "group" (a "13(d) Group") within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, with
respect to any voting securities of the Company and one or more members of such
13(d) Group take any action that the members of the La Salle Group are
prohibited from taking under paragraph 4 of this Agreement.
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March 26, 1999
Page 4
Kindly confirm that the foregoing represents our understanding and
agreement in respect of this matter by signing below where indicated and
returning the signed copy.
Sincerely,
BANK PLUS CORPORATION
By: /s/ Mark K. Mason
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Mark K. Mason
President and Chief Executive
Officer
The undersigned members of the La Salle Group hereby agree to the foregoing this
26th day of March, 1999.
LA SALLE FINANCIAL PARTNERS, L.P. LA SALLE CAPITAL MANAGEMENT, INC.,
By: La Salle Capital Management, Inc.,
general partner
By: /s/ Richard J. Nelson
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By: /s/ Richard J. Nelson Richard J. Nelson, President
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Richard J. Nelson, President
TALMAN FINANCIAL, INC.
/s/ Richard J. Nelson
By: /s/ Peter T. Kross ------------------------------
------------------------------ RICHARD J. NELSON
Peter T. Kross, President
/s/ Peter T. Kross
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PETER T. KROSS
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Exhibit A
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Section 1.2 of the By-laws shall be amended and restated in its
entirety as follows:
Section 1.2. Special Meetings. Special meetings of stockholders may
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be called at any time by the Chairman of the Board, if any, the Vice Chairman of
the Board, if any, the President or the Board of Directors, to be held at such
date, time and place either within or without the State of Delaware as may be
stated in the notice of the meeting. A special meeting of stockholders shall be
called upon the written request, stating the purpose of the meeting, of three or
more unaffiliated stockholders who together own not less than one-fifth of the
shares of outstanding capital stock entitled to be voted at the special meeting.
Section 1.7 of the By-laws shall be amended and restated in its
entirety as follows:
Section 1.7. Inspectors. Prior to any meeting of stockholders, the
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Board of Directors or the President shall appoint one or more inspectors to act
at such meeting and make a written report thereof and may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at the meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and
the voting power of each, determine the shares represented at the meeting and
the validity of proxies and ballots, disposition of any challenges made to any
determination by the inspectors and certify their determination of the number of
shares represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons to assist them in the performance
of their duties. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxy or vote, nor any revocation thereof
or change thereto, shall be accepted by the inspectors after the closing of the
polls. In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of records. If
the inspectors consider their reliable information for such purpose, they shall,
at the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
The sixth sentence of Section 1.8 of the By-laws shall be amended and
restated in its entirety as follows:
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Section 1.8. Voting; Proxies. Directors shall be elected by a
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plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors.
Section 6.7 of the By-laws shall be amended and restated in its
entirety as follows:
Section 6.7. Amendment of By-Laws. These by-laws may be amended or
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repealed, and new by-laws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional by-laws and may amend or
repeal any by-law whether or not adopted by them. Any action taken by the
stockholders pursuant to the foregoing sentence, whether adopting additional by-
laws or amending and repealing existing by-laws, may not be modified, directly
or indirectly, by the Board of Directors without the prior approval of the
stockholders entitled to vote.
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