exv10w2





 Exhibit
10.2


February 13, 2009




United States Department of the Treasury

1500 Pennsylvania Avenue, NW

Washington, D.C. 20220




Westamerica Bancorporation

1108 Fifth Avenue

San Rafael, California 94901




Ladies and Gentlemen:




     Reference is made to that certain Letter Agreement incorporating the Securities Purchase
Agreement – Standard Terms dated of even date herewith (the “Securities Purchase Agreement”) by and
among United States Department of Treasury (“Investor”) and Westamerica Bancorporation (“Company”).
Investor and Company desire to set forth herein certain additional agreements regarding Company’s
commitment to the holder of the Preferred Shares after the closing of the transactions contemplated
by the Securities Purchase Agreement. Terms that are defined in the Securities Purchase Agreement
are used in this letter agreement as so defined.



     In order to comply with California Corporations Code §212(a), the Company has modified section
7(b) of the Standard Provisions of the Certificate of Determination attached as Exhibit A
to the Securities Purchase Agreement (the “Certificate of Determination”) to provide in pertinent
part as follows:




“Whenever, at any time or times, dividends payable on the shares of
Designated Preferred Stock have not been paid for an aggregate of
six quarterly Dividend Periods or more, whether or not consecutive,
the holders of the Designated Preferred Stock shall have the right,
with holders of shares of any one or more other classes or series of
Voting Parity Stock outstanding at the time, voting together as a
class, to elect two directors...”



     By its execution hereof, the Company hereby confirms and agrees that as of the date hereof and at
all times while any shares of the Designated Preferred Stock are outstanding it shall maintain a
range of directors of the Company that will permit the holder of the Preferred Shares to elect two
directors in accordance with said section 7(b). Currently Article III, Section 3.02 (the
“Applicable Provision”) of the Company’s bylaws (the “Bylaws”) provides for a range of directors of
no less than eight (8) and no more than fifteen (15). At all times while any shares of the
Designated Preferred Stock are outstanding, the Company shall not fill more than thirteen (13)
director positions. In the event the Company desires to increase the number of directors beyond
thirteen (13), then the Company shall be required to amend the Bylaws to increase the maximum
directors to always allow for at least two open director seats for the holders of the Preferred
Shares to elect in accordance with Section 7(b) of the Standard Terms of the Certificate of
Determination of Preferences of Fixed Rate Cumulative Perpetual Preferred Stock, Series A of



 









 





United States Department of Treasury

Westamerica Bancorporation

February 13, 2009



Westamerica Bancorporation (and to amend the bylaws to provide that such provision may not be
modified, amended or repealed by the Company’s board of directors (or any committee thereof) or
without the affirmative vote and approval of (x) the stockholders and (y) the holders of at least a
majority of the shares of Designated Preferred Stock outstanding at the time of such vote and
approval).




     In addition, by its execution hereof, the Company hereby confirms and agrees that it will,
within 15 days after the date of this letter agreement, amend the Applicable Provision by adding
the following sentence at the end thereof:




“Notwithstanding anything in these bylaws to the contrary, for so long as the
Corporation’s Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the
“Designated Preferred Stock”) is outstanding: (i) whenever, at any time or times,
dividends payable on the shares of Designated Preferred Stock have not been paid for
an aggregate of six quarterly Dividend Periods (as defined in the Certificate of
Determination for the Designated Preferred Stock) or more, whether or not
consecutive, the authorized number of directors shall automatically be increased by
two (but shall in no event be increased to a number of directors that is greater
than the maximum number of directors set forth in Article III, Section 3.02 of these
bylaws); and (ii) this sentence may not be modified, amended or repealed by the
Corporation’s board of directors (or any committee thereof) or without the
affirmative vote and approval of (x) the stockholders and (y) the holders of at
least a majority of the shares of Designated Preferred Stock outstanding at the time
of such vote and approval.”



     The parties hereto acknowledge that there would be no adequate remedy at law if the Company
fails to perform any of its obligations under this letter agreement and that the Investor may be
irreparably harmed by any such failure, and accordingly agree that the Investor, in addition to any
other remedy to which it may be entitled at law or in equity, to the fullest extent permitted and
enforceable under applicable law shall be entitled to compel specific performance of the
obligations of the Company under this letter agreement without the necessity of proving the
inadequacy of monetary damages as a remedy or the posting of a bond.



     This letter agreement and the Certificate of Determination constitute the entire agreement,
and supersedes all other prior agreements, understandings, representations and warranties, both
written and oral, between the parties with respect to the subject matter hereof.



     This letter agreement may be executed in counterparts, each of which shall be deemed an
original and all of which shall together constitute one and the same instrument. This letter
agreement shall be governed in all respects, including as to validity, interpretation and effect,
by the internal laws of the State of California, without giving effect to the conflict of laws
rules thereof.



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2









 





United States Department of Treasury

Westamerica Bancorporation

February 13, 2009

Signature Page




     In witness whereof, this letter agreement has been duly executed by the authorized
representatives of the parties hereto as of the date first above written.



	 	 	 	 	 	 	 
	 	 	WESTAMERICA BANCORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John “Robert” A. Thorson	 	 
	 

	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jennifer J. Finger	 	 
	 

	 	Title:
	 	Senior Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	UNITED STATES DEPARTMENT OF THE TREASURY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title: