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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 1, 1998
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BANCWEST CORPORATION
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
Delaware 0-7949 99-0156159
(Commission File Number) (State of incorporation) (I.R.S. Employer
Identification No.)
999 Bishop Street 96813
Honolulu, Hawaii (Zip Code)
(Address of Principal Executive Offices)
</TABLE>
Registrant's telephone number, including area code: (808) 525-7000
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Item 2. Acquisition or Disposition of Assets.
The merger (the "Merger") of BancWest Corporation ("BancWest"), a
California corporation and a subsidiary of Banque Nationale de Paris, a limited
liability banking corporation organized under the laws of the Republic of France
("BNP"), into First Hawaiian, Inc., a Delaware corporation (the "Company"),
became effective on November 1, 1998. As a result of the Merger, the
outstanding shares of common stock of BancWest were canceled and converted into
25.8 million shares of a newly-created class of the Company's common stock,
designated as "Class A Common Stock", which constitute 45% of the aggregate
outstanding voting power of the Company. The Class A Common Stock (which
generally may be owned only by BNP and its affiliates) has the same rights and
privileges generally as the Company's existing common stock, except that the
Class A stockholders will be able to elect a number of directors proportionate
to their equity interest in the Company. In connection with the Merger, the
Company and BNP entered into related agreements, including a Standstill and
Governance Agreement dated as of November 1, 1998 (the "Standstill Agreement"),
a copy of which is attached hereto as Exhibit 4(i) and is incorporated herein by
reference, and a Registration Rights Agreement dated as of November 1, 1998, a
copy of which is attached hereto as Exhibit 4(ii) and is incorporated herein by
reference.
The Company effected various amendments to its certificate of incorporation
(the "Certificate of Incorporation") and by-laws (the "By-Laws") in order to
create the Class A Common Stock and a related class of directors and to provide
for various governance and other matters contemplated by the Standstill
Agreement and related arrangements between the parties. A copy each of the
Certificate of Incorporation and the By-Laws are attached hereto as Exhibits
3(i) and 3(ii), respectively.
In connection with the Merger, FHI has changed its name to BancWest
Corporation to reflect its new regional scope, pursuant to the approval of its
stockholders.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Business Acquired.
Financial statements required by this item shall be filed not later
than 60 days after the date that this report is required to be filed.
(b) Pro Forma Financial Information.
Financial statements required by this item shall be filed not later
than 60 days after the date that this report is required to be filed.
(c) Exhibits.
3(i) Certificate of Incorporation of BancWest Corporation (formerly
First Hawaiian, Inc.).
3(ii) Amended and Restated By-Laws of BancWest Corporation (formerly
First Hawaiian, Inc.).
4(i) Standstill and Governance Agreement between First Hawaiian,
Inc. and Banque Nationale de Paris, dated as of November 1,
1998.
4(ii) Registration Rights Agreement between First Hawaiian, Inc. and
Banque Nationale de Paris, dated as of November 1, 1998.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BANCWEST CORPORATION.
Dated: November 5, 1998 By: /s/ Thomas P. Huber
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Name: Thomas P. Huber
Title: Senior Vice President
and General Counsel
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EXHIBIT INDEX
Exhibit No. Description
3(i) Certificate of Incorporation of BancWest Corporation
(formerly First Hawaiian, Inc.).
3(ii) Amended and Restated By-Laws of BancWest Corporation
(formerly First Hawaiian, Inc.).
4(i) Standstill and Governance Agreement between First Hawaiian,
Inc. and Banque Nationale de Paris, dated as of November 1,
1998.
4(ii) Registration Rights Agreement between First Hawaiian, Inc.
and Banque Nationale de Paris, dated as of November 1, 1998.
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EXHIBIT 3(I)
CERTIFICATE OF INCORPORATION
OF
BANCWEST CORPORATION
First. The name of the corporation is "BancWest Corporation".
Second. The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle 19801. The name and address of its resident
agent is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware
19801.
Third. The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
Fourth. The total number of shares of stock which the corporation shall
have authority to issue is Three Hundred Twenty-Five Million (325,000,000)
shares having a par value of One Dollar ($1.00) per share, divided into three
classes: Two Hundred Million (200,000,000) shares designated as Common Stock
(the "Common Stock"); Seventy-Five Million (75,000,000) shares designated as
Class A Common Stock (the "Class A Common Stock"); and Fifty Million
(50,000,000) shares designated as Preferred Stock (the "Preferred Stock").
(a) The Class A Common Stock.
(1) After the requirements, if any, with respect to preferential
dividends on the Preferred Stock shall have been met and after the
corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts in respect of the Preferred Stock, the holders of shares
of Class A Common Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, dividends payable on the same date fixed for payment of the
corresponding dividend on the Common Stock (other than a dividend payable
in shares of Common Stock, or in options, warrants or other securities
exercisable for or convertible into shares of Common Stock), in an amount
per share equal to the aggregate per share amount of any cash dividend and
the aggregate per share amount (payable in kind) of any non-cash dividend
(other than a dividend payable in shares of Common Stock or in options,
warrants or other securities exercisable for or convertible into shares of
Common Stock) paid on the Common Stock.
(2) In the event that the corporation shall at any time declare and
pay any dividend on the Common Stock payable in shares of Common Stock or
in options, warrants or other securities exercisable for or convertible
into shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock or in options, warrants or other securities exercisable for or
convertible into shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each case the corporation shall, as the
case may be, declare and pay an equivalent dividend per share on the Class
A Common Stock payable in shares of Class A Common Stock or in options,
warrants or other securities exercisable for or convertible into shares of
Class A Common Stock or effect an equivalent subdivision, combination or
consolidation of the outstanding shares of Class A Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Class A Common Stock or in options, warrants or other securities
exercisable for or convertible into shares of Class A Common Stock) into a
greater or lesser number of shares of Class A Common Stock.
(3) The corporation shall declare a dividend on the Class A Common
Stock as provided in subparagraph (1) and subparagraph (2) of this
paragraph (a) at the same time that it declares any dividend on the Common
Stock and shall effect a subdivision, combination or consolidation of the
outstanding shares of Class A Common Stock as provided in subparagraph (2)
of this paragraph (a) into
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a greater or lesser number of shares of Class A Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Class A Common Stock or in options, warrants or other securities
exercisable for or convertible into shares of Class A Common Stock) at the
same time that it effects any subdivision, combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock or in options,
warrants or other securities exercisable for or convertible into shares of
Common Stock) into a greater or lesser number of shares of Common Stock.
(4) Except as set forth in subparagraphs (1) through (3) and (5) of
this paragraph (a), holders of shares of Class A Common Stock shall not be
entitled to receive, and the corporation shall not declare or pay, any
dividend or distribution (whether in cash, property or securities) on the
Class A Common Stock. Subject to the requirements of applicable law and
this Certificate of Incorporation, no dividend shall be payable on the
shares of Common Stock unless an equivalent per share dividend is payable
on the shares of Class A Common Stock on the same date fixed for payment of
the corresponding dividend on the Common Stock (other than a dividend
payable in shares of Common Stock, or in options, warrants or other
securities exercisable for or convertible into shares of Common Stock).
(5) After distribution in full of the preferential amount, if any, to
be distributed to the holders of the Preferred Stock, in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
corporation, the holders of Class A Common Stock shall, subject to the
right, if any, of the holders of the Preferred Stock to participate
therein, be entitled, together with the holders of the Common Stock, to
receive all the remaining assets of the corporation, tangible and
intangible, of whatever kind available for distribution to stockholders,
ratably in proportion to the number of shares held by such holder.
(6) Except as may otherwise be required by law or this Certificate of
Incorporation, each holder of the Class A Common Stock shall have one vote
in respect of each share of the Class A Common Stock held by such holder on
each matter in respect of which the holders of the Common Stock are
entitled to vote, and the holders of the Class A Common Stock shall vote
together with the holders of the Common Stock as a single class; provided,
however, that the holders of the Class A Common Stock shall not be entitled
to vote in the election of directors except as provided in subparagraph (7)
of this paragraph (a).
(7) (i) Subject to clause (ii) of this subparagraph (7), the holders
of the Class A Common Stock shall have the right, voting separately as a
class, at each meeting of the stockholders held for the purpose of electing
directors to elect that number of directors of the corporation, which
number, together with the number of Class A Directors in each of the other
two classes of directors (the directors in all three classes are
hereinafter referred to as the "Class A Directors"), shall equal the
product (rounded to the nearest whole number if such product is not a whole
number) of (x) the Class A Multiplier (as defined below) and (y) the total
number of directors constituting the authorized number of directors;
provided that in no event shall the number of directors entitled to be
elected by holders of Class A Common Stock constitute a majority of the
total number of directors constituting the authorized number of directors;
provided, further that no person who is not an officer of Banque Nationale
de Paris or any of its Affiliates shall be a nominee for a Class A
directorship unless such person shall be reasonably satisfactory to the
Board of Directors as evidenced by a resolution duly adopted by a majority
of the directors constituting the authorized number of directors prior to
the time such person is nominated for a Class A directorship. The holders
of shares of Common Stock shall not be entitled to vote with respect to the
election of the Class A Directors. The directors of the corporation other
than the Class A Directors shall be elected by the holders of the class or
classes or series of stock entitled to vote therefor, but excluding the
Class A Common Stock.
The "Class A Multiplier" shall be equal to:
.45, if the Class A Interest (as defined below) is greater than or
equal to 40% and less than or equal to 45%;
.35, if the Class A Interest is greater than or equal to 35% and
less than 40%;
.30, if the Class A Interest is greater than or equal to 30% and
less than 35%;
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.25, if the Class A Interest is greater than or equal to 25% and
less than 30%;
.20, if the Class A Interest is greater than or equal to 20% and
less than 25%;
.15, if the Class A Interest is greater than or equal to 15% and
less than 20%; and
.10, if the Class A Interest is greater than or equal to 10% and
less than 15%.
(ii) At any meeting held for the purpose of electing directors, the
presence in person or by proxy of the holders of at least a majority in
voting power of the then outstanding shares of Class A Common Stock shall
be required and be sufficient to constitute a quorum of such class for the
election of Class A Directors by such class. At any such meeting or
adjournment thereof (A) the absence of a quorum of the holders of Class A
Common Stock shall not prevent the election of directors other than Class A
Directors and the absence of a quorum or quorums of the holders of capital
stock entitled to elect such other directors shall not prevent the election
of Class A Directors and (B) in the absence of a quorum of the holders of
shares of Class A Common Stock a majority of such holders present in person
or by proxy shall have the power to adjourn the meeting for the election of
Class A Directors, from time to time, without notice (except as required by
law) other than an announcement at the meeting, until a quorum shall be
present.
(iii) Except as provided in this clause (iii), each Class A Director
shall serve for a three year term (except that the initial Class A
Directors shall serve for the remainder of the term of the class to which
they are assigned) and until such director's successor has been elected and
qualified, subject to such director's earlier death, resignation, removal
or retirement. Notwithstanding the foregoing, upon the conversion of all
outstanding shares of Class A Common Stock pursuant to clause (ii) of
subparagraph (9), the term of office of all Class A Directors then in
office shall thereupon terminate, the vacancy or vacancies resulting from
such termination shall be filled by the remaining directors then in office
acting by majority vote of such remaining directors, and the director or
directors so elected to fill such vacancy or vacancies shall not be treated
hereunder or under the by-laws of the corporation as Class A Directors. In
addition, notwithstanding the foregoing, if at any time the number of
directors that the holders of the Class A Common Stock have the right to
elect pursuant to clause (i) of this subparagraph (7) shall decrease other
than as set forth in the preceding sentence (whether upon the conversion of
shares of Class A Common Stock pursuant to clauses (i) or (viii) of
subparagraph (9) of this paragraph (a), upon the decrease in the number of
directors constituting the authorized number of directors or otherwise),
then the term of office of a number of Class A Directors then in office
equal to such decrease shall terminate effective at the close of business
on the fifteenth day following the event that resulted in such decrease
(the "Termination Date"); provided that if, prior to the Termination Date,
the holders of the Class A Common Stock shall not have removed or caused to
resign, in either case effective as of the Termination Date, a number of
Class A Directors equal to such decrease, then the terms of office of all
Class A Directors then in office shall terminate on the Termination Date.
The vacancy or vacancies resulting from the termination provided for in the
preceding sentence shall be filled as follows: (A) the vacancy or vacancies
equal to the number of directors that the holders of the Class A Common
Stock then have the right to elect pursuant to clause (i) of this
subparagraph (7) (after giving effect to the decrease referred to in the
preceding sentence) shall be filled as provided in clause (iv) of this
subparagraph (7), and the director or directors so elected to fill such
vacancy or vacancies shall be treated hereunder and under the by-laws of
the corporation as Class A Directors; provided that no person who is not an
officer of Banque Nationale de Paris or any of its Affiliates shall fill
any such vacancy unless such person shall be reasonably satisfactory to the
Board of Directors as evidenced by a resolution duly adopted by a majority
of the directors then in office prior to the time such person is nominated
to fill any such vacancy and (B) the remaining vacancy or vacancies shall
be filled by the remaining directors then in office acting by majority vote
of such remaining directors, and the director or directors so elected to
fill such vacancy or vacancies shall not be treated hereunder or under the
by-laws as Class A Directors.
(iv) Subject to clause (iii) of this subparagraph (7), in case of any
vacancy occurring among the Class A Directors, the remaining Class A
Director or Directors may appoint a successor by a majority vote of the
remaining Class A Directors to hold office for the unexpired term of the
Class A Director
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whose place shall be vacant; provided that no person who is not an officer
of Banque Nationale de Paris or any of its Affiliates shall fill any such
vacancy unless such person shall be reasonably satisfactory to the Board of
Directors as evidenced by a resolution duly adopted by a majority of the
directors constituting the authorized number of directors prior to the time
such person is nominated to fill any such vacancy. If at any time the
offices of all Class A Directors shall be vacant, then, subject to clause
(iii) of this subparagraph (7), the holders of Class A Common Stock then
outstanding voting separately as a class may elect successors to hold
office for the unexpired terms of the Class A Directors whose places shall
be vacant.
(v) The Class A Directors shall be apportioned by a majority vote of a
committee comprised of the Class A Directors among any classes of directors
established pursuant to paragraph (b) of Article Sixth (as such provision
hereafter may be amended or relettered or renumbered) so as to maintain the
number of Class A Directors in each class as nearly equal as practicable.
(8) Notwithstanding that a lesser or no vote of stockholders of the
corporation may be required by law, and in addition to any other vote of
stockholders of the corporation required by law, this Certificate of
Incorporation or the by-laws of the corporation, until the conversion of
all outstanding shares of Class A Common Stock pursuant to clause (ii) of
subparagraph (9), the corporation shall not take, and the corporation shall
not, directly or indirectly, engage in, any of the following actions
without the written consent or affirmative vote of the holders of a
majority of the shares of Common Stock and Class A Common Stock at the time
outstanding, voting together as a class (except in respect of any actions
described in clauses (i), (ii), (iii) or (ix), in which case the holders of
the Class A Common Stock shall not vote with the holders of the shares of
Common Stock but shall instead only vote separately as a class); provided
that if any such action has been approved by the affirmative vote of
two-thirds of the authorized number of directors of the corporation, only
such vote, if any, of the stockholders of the corporation as is required
under applicable law or otherwise under this Certificate of Incorporation
or the by-laws of the corporation shall be required:
(i) The amendment of this Certificate of Incorporation or the
by-laws of the corporation so as to materially and adversely affect the
rights of the holders of Class A Common Stock;
(ii) (A) The issuance of any series or class of capital stock
having either (x) more than one vote per share or (y) a class vote on
any matter, except to the extent such class vote is required by Delaware
law or to the extent that holders of any series of Preferred Stock may
have the right, voting separately as a class, to elect a number of
directors of the corporation upon the occurrence of a default in payment
of dividends or redemption price or (B) the adoption of any stockholder
rights plan;
(iii) The issuance of any series of Preferred Stock which at the
time of such issuance would not constitute "non-voting shares" as
defined in 12 C.F.R. ss. 225.2(q)(2) or any successor provision;
(iv) The issuance of Voting Securities (as defined in clause (xv)
of subparagraph (10) of this paragraph (a)) to any person or entity
(including the subsidiaries of the corporation and, for this purpose,
irrespective of whether such subsidiaries are entitled to vote such
securities) representing voting power in excess of (i) 20% of the
aggregate voting power of the outstanding Voting Securities as of the
date of such issuance or (ii) 35% of the aggregate voting power of the
average number of Voting Securities outstanding over the previous twelve
months (calculated for this purpose based on the number of Voting
Securities issued and outstanding on the last day of each of the twelve
calendar months immediately preceding the month in which such issuance
occurs); provided that for purposes of this clause (iv), (A) the
issuance of options, warrants or other securities exercisable for or
convertible into Voting Securities (other than pursuant to dividends or
other distributions paid or distributed ratably to all stockholders of
the corporation) shall be deemed to be the issuance of Voting Securities
for or into which such securities are exercisable or convertible and if
the corporation enters into an agreement to issue Voting Securities such
Voting Securities shall be deemed to be issued on the date that the
corporation executes an agreement to issue such Voting
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Securities and (B) such percentages shall be calculated on a pro forma
basis after giving effect to the issuance or issuances in question;
(v) Any merger, consolidation or other business combination in
which the corporation is a constituent company if the corporation is not
the surviving or resulting entity in such transaction (or if the
corporation is the surviving or resulting entity and such transaction
results in a Change of Control (as defined in clause (iii) of
subparagraph (10) of this paragraph (a)) of the corporation), or the
sale, exchange, lease or mortgage of all or substantially all of the
corporation's assets in one transaction or a series of related
transactions;
(vi) Any acquisition, directly or indirectly, by the corporation or
any of its subsidiaries (except from the corporation or a subsidiary of
the corporation) of any assets or businesses, in one transaction or a
series of related transactions in any twelve-month period (whether by
merger, tender or exchange offer, asset purchase or otherwise), in which
the consideration paid by the corporation (i) if in shares of Common
Stock, will exceed 20% of the aggregate voting power of the outstanding
Voting Securities as of the date that the corporation or any such
subsidiary enters into a definitive agreement to effect such transaction
or, in the case of a series of related transactions, as of the date that
the corporation or any such subsidiary enters into a definitive
agreement to effect the last of such related transactions, or (ii) if in
cash, property or other securities of the corporation, has a Fair Market
Value (as defined in clause (vi) of subparagraph (10) of this paragraph
(a)) at the time of the execution by the corporation or such subsidiary
of a definitive agreement to effect such transaction or, in the case of
a series of related transactions, at the time of the execution by the
corporation or such subsidiary of a definitive agreement to effect the
last of such related transactions, which will exceed one-fourth of the
Market Capitalization (as defined in clause (viii) of subparagraph (10)
of this paragraph (a)) of the corporation at such time;
(vii) Any disposition, directly or indirectly, by the corporation
or any of its subsidiaries (except to the corporation or a subsidiary of
the corporation) of any assets or businesses, in one transaction or a
series of related transactions in any twelve-month period (whether by
merger, tender or exchange offer, asset purchase or otherwise) in which
the book value of the assets disposed of (as shown on the most recently
available financial statements of the corporation) exceed one-sixth of
the Total Consolidated Assets (as defined in clause (xiii) of
subparagraph (10) of this paragraph (a)) of the corporation at the time
of the execution by the corporation or such subsidiary of a definitive
agreement to effect such disposition or, in the case of a series of
related transactions, at the time of the execution by the corporation or
such subsidiary of a definitive agreement to effect the last of such
dispositions;
(viii) The voluntary liquidation or dissolution of the corporation;
or
(ix) Any merger, consolidation, recapitalization, reorganization,
sale, acquisition, other business combination or other transaction to
which the corporation is a party involving the issuance of Voting
Securities of the corporation that does not result in a Change of
Control of the corporation if, as a result of such transaction, any
person (other than a holder of shares of Class A Common Stock) would
become the Beneficial Owner of 25% or more of the total voting power of
all Voting Securities of the corporation outstanding after such
transaction or any three persons (other than holders of shares of Class
A Common Stock) would become the Beneficial Owners of 45% or more of the
total voting power of all Voting Securities of the corporation
outstanding after such transaction.
(9)(i) If any issued and outstanding shares of Class A Common Stock
are Transferred (as defined in clause (xiv) of subparagraph (10) of this
paragraph (a)) to any person other than (A) an Affiliate (as defined in
clause (i) of subparagraph (10) of this paragraph (a)) of the transferring
holder, (B) a Qualified Transferee (as defined in clause (xi) of
subparagraph (10) of this paragraph (a)) or (C) a Qualified Pledgee (as
defined in clause (x) of subparagraph (10) of this paragraph (a)), each
share of Class A Common Stock so Transferred shall be automatically
converted, without any action on the part of the corporation or any action
on the part of the transferring holder or transferee, into one fully paid
and nonassessable share of the Common Stock on the date of such Transfer.
Notwithstanding the foregoing,
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shares of Class A Common Stock Transferred to a Qualified Pledgee shall be
automatically converted, without any action on the part of the corporation
or any action on the part of the pledgor or pledgee, into one fully paid
and nonassessable share of the Common Stock at such time as the holder of
the shares of Class A Common Stock who entered into such pledge no longer
has the sole power to vote or direct the voting of such shares of Class A
Common Stock.
(ii) Upon the occurrence of a Conversion Event (as defined in clause
(v) of subparagraph (10) of this paragraph (a)), without any action on the
part of the corporation or the holders of shares of Class A Common Stock,
each share of Class A Common Stock issued and outstanding immediately prior
to the Conversion Event shall automatically be converted into one fully
paid and nonassessable share of Common Stock. Upon the occurrence of a
Conversion Event, prompt written notice thereof and of the resulting
conversion of the Class A Common Stock shall be given by first class mail,
postage prepaid, to each person who immediately prior to the Conversion
Event was a holder of record of shares of Class A Common Stock, at such
person's address as the same appears on the stock register of the
corporation; provided, however, that no failure to give such notice nor any
defect therein shall affect the effectiveness of the conversion of any
shares of Class A Common Stock. Each such notice shall include a statement
setting forth the place or places where certificates formerly representing
shares of Class A Common Stock are to be surrendered in accordance with
clause (iv) of this subparagraph (9).
(iii) Conversion pursuant to clauses (i) or (ii) of this subparagraph
(9) shall be deemed to have been effected at the time of the Transfer or
the Conversion Event, as the case may be, that resulted in such conversion
(the "Conversion Time"). Immediately upon such conversion, the rights of
the holders of shares of Class A Common Stock so converted as such shall
cease and such holders shall be treated for all purposes as having become
the record owners of the shares of Common Stock issuable upon such
conversion; provided, however, that such persons shall be entitled to
receive when paid any dividends declared on the Class A Common Stock as of
a record date preceding the Conversion Time and unpaid as of the Conversion
Time.
(iv) As promptly as practicable after the Conversion Time, upon the
delivery to the corporation of the certificates formerly representing
shares of Class A Common Stock, the corporation shall deliver or cause to
be delivered, to or upon the written order of the record holder of the
surrendered certificates formerly representing shares of Class A Common
Stock, a certificate or certificates representing the number of fully paid
and nonassessable shares of Common Stock into which the shares of Class A
Common Stock formerly represented by such certificates have been converted
in accordance with the provisions of this subparagraph (9).
(v) The corporation will pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on the conversion of shares of Class A Common Stock
pursuant to this subparagraph (9); provided, however, that the corporation
shall not be required to pay any tax which may be payable in respect of any
registration of transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the registered holder of Class A
Common Stock converted or to be converted, and no such issue or delivery
shall be made unless and until the person requesting such issue has paid to
the corporation the amount of any such tax or has established, to the
satisfaction of the corporation, that such tax has been paid.
(vi) The corporation shall at all times reserve and keep available,
out of the aggregate of its authorized but unissued Common Stock and its
issued Common Stock held in its treasury, for the purpose of effecting the
conversion of the Class A Common Stock, the full number of shares of Common
Stock then deliverable upon the conversion of all outstanding shares of the
Class A Common Stock.
(vii) Shares of the Class A Common Stock may not be issued by the
corporation other than pursuant to, or in accordance with, the terms of
this Certificate of Incorporation, the Agreement and Plan of Merger, dated
as of May 28, 1998, between the corporation and BancWest Corporation, a
California corporation, and the Standstill and Governance Agreement (as
defined in clause (xii) of subparagraph (10) of this paragraph (a)).
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(viii) Shares of Class A Common Stock may, at the option of the holder
thereof, be irrevocably converted into shares of Common Stock at any time
following the commencement of a bona fide tender or exchange offer or the
making of a bona fide Business Combination Proposal (within the meaning of
the definition thereof set forth in the Standstill and Governance
Agreement), in either case by Banque Nationale de Paris following the
occurrence of an Acquisition Restrictions Termination Event (within the
meaning of the definition thereof set forth in the Standstill and
Governance Agreement) by delivery and surrender to the corporation of the
certificates representing the shares of Class A Common Stock. Conversion
pursuant to this clause (viii) of this subparagraph (9) shall be deemed to
have been effected at the time of such surrender. Upon surrender, the
corporation shall deliver or cause to be delivered, to or upon the written
order of the record holder of the surrendered certificates, a certificate
or certificates representing the number of fully paid and nonassessable
shares of Common Stock into which the shares of Class A Common Stock
represented by such certificates have been converted in accordance with the
provisions of this subparagraph (9).
(10) For purposes of this Article Fourth and of Article Sixth of this
Certificate of Incorporation:
(i) "Affiliate" means, with respect to any person, any other person
that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with, such
specified person.
(ii) "Beneficial Ownership" by a holder of any securities includes
ownership by any holder who, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has or
shares (i) voting power which includes the power to vote, or to direct
the voting of, such security; and/or (ii) investment power which
includes the power to dispose, or to direct the disposition of, such
security; and shall otherwise be interpreted in accordance with the term
"beneficial ownership" as defined in Rule 13d-3 adopted by the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended (or any successor provision) (the "Exchange Act");
provided that for purposes of determining Beneficial Ownership, a holder
shall be deemed to be the Beneficial Owner of any securities which may
be acquired by such holder (irrespective of whether the right to acquire
such securities is exercisable immediately or only after the passage of
time, including the passage of time in excess of 60 days, the
satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise. A holder shall be deemed to
Beneficially Own any securities Beneficially Owned by its Affiliates or
any group (as defined in Section 13(d)(3) of the Exchange Act) of which
such holder of any of its Affiliates is or becomes a member.
(iii) "Change of Control" means a merger or consolidation of the
corporation with or into another person or the merger or consolidation
of another person into the corporation, as a result of which transaction
or series of related transactions (A) any person becomes the Beneficial
Owner of more than 50% of the total voting power of all Voting
Securities of the corporation (or, if the corporation is not the
surviving or transferee corporation of such transaction or transactions,
of such surviving or transferee corporation) outstanding immediately
after such transaction or transactions, or (B) the aggregate shares of
Class A Common Stock and Common Stock outstanding immediately prior to
such transaction or transactions do not represent a majority of the
voting power of all Voting Securities of the corporation (or such
surviving or transferee corporation, if not the corporation) outstanding
immediately after such transaction or transactions.
(iv) "Class A Interest" means, at any time, the ratio, expressed as
a percentage, of (i) the total number of outstanding shares of Class A
Common Stock Beneficially Owned by the holders of the Class A Common
Stock to (ii) the sum of (x) the total number of outstanding shares of
Common Stock and Class A Common Stock and (y) any shares of Common Stock
or Class A Common Stock that are issuable upon conversion, exchange or
exercise of any securities included in clause (i); provided that clause
(i) of this definition of the term "Class A Interest" shall not include
any shares of Class A Common Stock that are Beneficially Owned in excess
of the Permitted Ownership
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<PAGE> 8
Percentage (as defined in the Standstill and Governance Agreement) in
effect at any time pursuant to the terms of the Standstill and
Governance Agreement (including, without limitation, any shares of Class
A Common Stock required to be disposed of in accordance with Sections
2.1(f), 2.1(g) or 2.1(h) of the Standstill and Governance Agreement) and
clause (ii)(x) of this definition of the term "Class A Interest" shall
not include any shares of Common Stock or Class A Common Stock held in
the corporation's treasury or belonging to any subsidiaries of the
corporation which are not entitled to be voted or counted for purposes
of determining the presence of a quorum pursuant to the requirements of
applicable law.
(v) "Conversion Event" means the Class A Interest becoming less
than 10%.
(vi) "Fair Market Value" means, as to any securities or other
property, the cash price at which a willing seller would sell and a
willing buyer would buy such securities or property in an arm's-length
negotiated transaction without time constraints. For purposes of this
Certificate of Incorporation, Fair Market Value shall be determined in
good faith by the affirmative vote of two-thirds of the directors
constituting the authorized number of directors, except that if such
vote is not obtained, the Fair Market Value shall be determined by an
investment banking firm selected by vote of a majority of the directors
constituting the authorized number of directors.
(vii) "Independent Director" means any Non-Class A Director;
provided that such Non-Class A Director is not an Affiliate or past or
present officer, director or employee of, and was not nominated by, any
holder of shares of Class A Common Stock or any of its Affiliates and is
not associated with an entity that performs substantial services for any
of the foregoing.
(viii) "Market Capitalization" means the product of (i) the average
of the daily closing prices for the Common Stock on the Nasdaq National
Market (or the principal exchange or market on which the Common Stock
may be listed or may trade) for the 20 consecutive trading days
commencing on the 22nd trading day prior to the date of determination
and (ii) the aggregate number of issued and outstanding shares of Common
Stock and Class A Common Stock at the time of execution of the
definitive agreement giving rise to the need for such calculation or, in
the case of a series of related transactions, at the time of the
execution of the last of such related definitive agreements giving rise
to the need for such calculation.
(ix) "Non-Class A Director" means any director other than a Class A
Director.
(x) "Qualified Pledgee" has the meaning set forth in the Standstill
and Governance Agreement.
(xi) "Qualified Transferee" has the meaning set forth in the
Standstill and Governance Agreement.
(xii) "Standstill and Governance Agreement" means the Standstill
and Governance Agreement, dated as of November 1, 1998, between the
corporation and Banque Nationale de Paris, a societe anonyme or limited
liability banking corporation organized under the laws of the Republic
of France, as such agreement may be amended, supplemented or modified
from time to time.
(xiii) "Total Consolidated Assets" means the amount shown under the
heading "Total Assets" on the balance sheet of the corporation included
in its most recently published annual report on Form 10-K or quarterly
report on Form 10-Q filed with the Securities and Exchange Commission
(or any successor reports thereto).
(xiv) "Transferred" means the occurrence of any act pursuant to
which, directly or indirectly, including by operation of law or
otherwise, the Beneficial Ownership of shares of Class A Common Stock
shall have been sold, transferred, assigned, pledged, encumbered,
hypothecated or otherwise disposed.
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<PAGE> 9
(xv) "Voting Securities" means at any time shares of any class of
capital stock or other securities of the corporation which are then
entitled to vote generally in the election of directors and not solely
upon the occurrence and during the continuation of certain specified
events.
(b) The Common Stock.
(1) After the requirements, if any, with respect to preferential
dividends on the Preferred Stock shall have been met and after the
corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts in respect of the Preferred Stock, and subject to the
right of the holders of Class A Common Stock to participate therein to the
extent provided in subparagraphs (1) and (3) of paragraph (a) of this
Article Fourth, then, but not otherwise, the holders of shares of Common
Stock shall be entitled to receive such dividends, if any, as may be
declared from time to time by the Board of Directors out of funds legally
available for such purpose.
(2) In the event that the corporation shall at any time declare and
pay any dividend on the Class A Common Stock payable in shares of Class A
Common Stock or in options, warrants or other securities exercisable for or
convertible into shares of Class A Common Stock or effect a subdivision,
combination or consolidation of the outstanding shares of Class A Common
Stock (by reclassification or otherwise than by payment of a dividend in
shares of Class A Common Stock or in options, warrants or other securities
exercisable for or convertible into shares of Class A Common Stock) into a
greater or lesser number of shares of Class A Common Stock, then in each
such case the corporation shall, as the case may be, declare and pay an
equivalent dividend per share on the Common Stock payable in shares of
Common Stock or in options, warrants or other securities exercisable for or
convertible into shares of Common Stock or effect an equivalent
subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock or in options, warrants or other
securities exercisable for or convertible into shares of Common Stock) into
a greater or lesser number of shares of Common Stock.
(3) After distribution in full of the preferential amount, if any, to
be distributed to the holders of the Preferred Stock, in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
corporation, the holders of Common Stock shall be entitled, together with
the holders of the Class A Common Stock, to receive all the remaining
assets of the corporation, tangible and intangible, of whatever kind
available for distribution to stockholders, ratably in proportion to the
number of shares held by such holder.
(4) Except as set forth in subparagraphs (1) through (3) of this
paragraph (b), holders of shares of Common Stock shall not be entitled to
receive, and the corporation shall not declare or pay, any dividend or
distribution (whether in cash, property or securities) on the Common Stock.
Subject to the requirements of applicable law and this Certificate of
Incorporation, no dividend shall be payable on the shares of Class A Common
Stock unless an equivalent per share dividend is payable on the Common
Stock on the same date fixed for payment of the corresponding dividend on
the Class A Common Stock (other than a dividend payable in shares of Class
A Common Stock, or in options, warrants or other securities exercisable for
or convertible into shares of Class A Common Stock).
(5) Except as may otherwise be required by law or this Certificate of
Incorporation, each holder of the Common Stock shall have one vote in
respect of each share of the Common Stock held by such holder on each
matter voted upon by the stockholders; provided, however, that the holders
of the Common Stock shall not be entitled to vote in the election of
directors except as provided in subparagraph (6) of this paragraph (b).
(6) At each meeting of the stockholders held for the purpose of
electing directors, the holders of Common Stock shall have the right to
elect that number of directors equal to the excess of (i) the total number
of directors then constituting the authorized number of directors over (ii)
the sum of (x) the number of directors the holders of the shares of Class A
Common Stock are entitled to elect, (y) the number of directors elected by
the stockholders of the corporation (other than the holders of shares of
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<PAGE> 10
Class A Common Stock or Preferred Stock) in each of the other two classes
and (z) the number of directors, if any, that the holders of the Preferred
Stock, voting separately by class or series, are entitled to elect. The
holders of shares of Class A Common Stock shall not be entitled to vote for
directors described under this subparagraph (6) of paragraph (b).
(c) The Preferred Stock. Subject to any other provision of this
Certificate of Incorporation, the Board of Directors is hereby expressly
authorized, by resolution or resolutions, to provide, out of the unissued shares
of Preferred Stock, for series of Preferred Stock and, with respect to each such
series, to fix the number of shares constituting such series and the designation
of such series, the voting powers (if any) of the shares of such series, and the
preferences and relative, participating, optional or other special rights, if
any, and any qualifications, limitations or restrictions thereof, of the shares
of such series. The powers, preferences and relative, participating, optional
and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
Fifth. The name and mailing addresses of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME ADDRESS
- ---- -------
<S> <C>
John D. Bellinger.................................... 165 South King Street
Honolulu, Hawaii 96813
Hugh R. Pingree...................................... 165 South King Street
Honolulu, Hawaii 96813
G. Harry Hutaff...................................... 165 South King Street
Honolulu, Hawaii 96813
</TABLE>
Sixth. (a) The powers of the incorporators shall terminate upon the filing
of the Certificate of Incorporation. The names and mailing addresses of the
persons who are to serve as directors of the corporation until the first annual
meeting of shareholders or until their successors are elected and qualified are
as follows:
<TABLE>
<CAPTION>
NAME ADDRESS
- ---- -------
<S> <C>
John D. Bellinger.................................... 165 South King Street
Honolulu, Hawaii 96813
Hugh R. Pingree...................................... 165 South King Street
Honolulu, Hawaii 96813
G. Harry Hutaff...................................... 165 South King Street
Honolulu, Hawaii 96813
</TABLE>
(b) Number and Identity.
(1) There shall be a Board of Directors of the corporation consisting
of not less than seven (7) nor more than twenty-five (25) members. Subject
to the foregoing limitation, the number of directors shall be fixed from
time to time solely by the Board of Directors, by the affirmative vote of
two-thirds of the directors constituting the authorized number of
directors.
(2) The directors shall be divided into classes, each class to consist
as nearly as practicable of one-third of the number of directors then
constituting the authorized number of directors. At each annual meeting,
the directors elected shall be elected for a full term of three years,
subject to clause (iii) of subparagraph (7) of paragraph (a) of Article
Fourth hereof, to succeed those whose terms expire. Notwithstanding the
foregoing, each director shall serve until his successor (if any) is duly
elected and qualified, or until his resignation, removal, or death. The
members of the Board of Directors shall be elected or appointed at such
times, in such manner, and for such terms as specified below or as may be
prescribed by this Certificate of Incorporation and the by-laws. This
subparagraph (2) of paragraph (b) may not be amended or repealed except
with the affirmative vote of the holders of three-fourths of the shares of
Common Stock and Class A Common Stock at the time outstanding, voting
together as a class.
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<PAGE> 11
(3) Notwithstanding the second sentence of subparagraph (1) of this
paragraph (b) of Article Sixth, if at any time the holders of shares of
Class A Common Stock are entitled to elect a number of directors pursuant
to subparagraph (7) of paragraph (a) of Article Fourth that exceeds the sum
of the number of directors elected by the holders of shares of Class A
Common Stock then serving on the Board of Directors and the number of
vacancies on the Board of Directors which the directors elected by the
holders of shares of Class A Common Stock or the holders of shares of Class
A Common Stock are entitled to fill, the total number of directors shall
automatically and without further action be increased by the smallest
number necessary to permit the election of such number of Class A Directors
that the holders of shares of Class A Common Stock are entitled to elect
pursuant to subparagraph (7) of paragraph (a) of Article Fourth.
(4) All of the powers of the corporation, exercisable by authority of
law or under this Certificate of Incorporation, or otherwise, shall be
vested in and exercised by, or by the authority of, the Board of Directors,
except as limited by law, this Certificate of Incorporation or the by-laws
of the corporation. The Board of Directors may, by resolution or otherwise,
create, or the by-laws may provide for, such committees of the Board of
Directors as the Board shall see fit or the by-laws shall provide for, and
such committees shall have and may exercise any and all such powers,
subject to applicable law, as the Board of Directors, by resolution, or the
by-laws, may provide.
(c) Nominations. Each nominee for a directorship of the corporation, other
than a directorship to be filled with a Class A Director, nominated by the Board
of Directors of the corporation shall be nominated by a majority vote of a
committee comprised of all the Non-Class A Directors then in office.
(d) Vacancies.
(1) In case any Independent Director shall cease to serve as a
director for any reason, the vacancy resulting therefrom shall only be
filled by a majority vote of a committee comprised of the remaining
Independent Directors then in office or, if no Independent Directors shall
remain in office, then by a majority vote of the Non-Class A Directors then
in office, or if no Non-Class A Directors shall then be remaining in
office, then the holders of the shares of Common Stock may, at a special
meeting of such holders called in accordance with the by-laws of the
corporation, elect successors to hold office for the unexpired terms of the
Independent Directors whose places shall be vacant.
(2) In case any Non-Class A Director (other than an Independent
Director) shall cease to serve as a director for any reason, the vacancy
resulting therefrom shall only be filled by a majority vote of the
remaining Non-Class A Directors (whether or not they constitute Independent
Directors) then in office, or if no Non-Class A Directors shall then be
remaining in office, then the holders of the shares of Common Stock may, at
a special meeting of such holders called in accordance with the by-laws of
the corporation, elect successors to hold office for the unexpired terms of
the Non-Class A Directors whose places shall be vacant.
(3) Subject to clauses (iii) and (iv) of subparagraph (7) of paragraph
(a) of Article Fourth, in case any Class A Director shall cease to serve as
a director for any reason, the vacancy resulting therefrom shall only be
filled by majority vote of the remaining Class A Directors, or if no such
Class A Directors shall then be remaining in office, then the holders of
the shares of Class A Common Stock, voting separately as a class may, at a
special meeting of such holders called in accordance with the by-laws of
the corporation, elect successors to hold office for the unexpired terms of
the Class A Directors whose places shall be vacant.
(4) In case there is any unfilled newly created directorship that the
holders of the shares of Class A Common Stock are not entitled to fill, the
vacancy created thereby shall be filled by a majority vote of a committee
of the Board of Directors comprised of the Independent Directors then in
office.
(e) Quorum. In addition to the requirements under applicable law and the
by-laws of the corporation, a quorum for transaction of business at any meeting
of the directors shall require the presence of at least a majority of the
Non-Class A Directors.
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<PAGE> 12
Seventh. (a) The officers of the corporation shall be a President, one or
more Vice Presidents (one or more of whom may be designated an Executive Vice
President and one or more of whom may be designated a Senior Vice President), a
Treasurer, a Secretary, a Chief Executive Officer, a Chief Operating Officer and
such other officers as may be authorized pursuant to the authority conferred by
the by-laws, all of whom shall be appointed by or by the authority of the Board
of Directors or the Executive Committee and serve at the pleasure of the Board
of Directors or the Executive Committee in accordance with and subject to the
provisions of the by-laws. There may be a Chairman of the Board of Directors who
shall be appointed by the Board of Directors from its own members and who shall
have such powers as may be prescribed by the bylaws or, if and to the extent
that the bylaws shall not so prescribe, by the Board of Directors.
(b) In the event that, at any time when there are shares of Class A Common
Stock outstanding, a vacancy shall occur in the office of the Chief Executive
Officer or the Chief Operating Officer of the corporation through death,
resignation, removal in accordance with the by-laws or otherwise following the
date of initial issuance of the Class A Common Stock, a nominating committee
shall be formed consisting of two Class A Directors (selected by a majority of
the Class A Directors then in office) and two Non-Class A Directors (selected by
a majority of the Non-Class A Directors then in office). Such nominating
committee shall nominate an individual to fill such vacancy and shall submit the
nomination to the full board of directors. In the event that such nominating
committee cannot agree on a nomination, the members of the committee shall
jointly select a fifth director, who must be a Non-Class A Director, to resolve
the disagreement by a majority vote of such nominating committee.
Eighth. The corporation is to have perpetual existence.
Ninth. No holder of shares of capital stock of any class of the
corporation or holder of any security or obligation convertible into shares of
capital stock of any class of the corporation shall have any preemptive right to
subscribe for, purchase or otherwise acquire shares of capital stock of any
class of the corporation, whether now or hereafter authorized.
Tenth. Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in law) outside the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors or in the bylaws of the corporation.
Eleventh. Subject to the provisions of this Certificate of Incorporation,
the Board of Directors shall have the authority to make, alter or repeal the
by-laws of the corporation; provided that the Board of Directors may not alter
or repeal Sections 2.2, 2.3, 2.6, 2.7, 3.4(c), 4.1 and Article X (unless, in the
case of Article X, such alteration or repeal affects all directors equally and
on the same terms) except by the affirmative vote of two-thirds of the
authorized number of directors.
Twelfth. To the fullest extent permitted by the Delaware General
Corporation Law as it exists or may hereafter be amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of a fiduciary duty as a director.
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<PAGE> 1
EXHIBIT 3(II)
AMENDED AND RESTATED
BY-LAWS
OF
BANCWEST CORPORATION
ARTICLE I
MEETINGS OF THE STOCKHOLDERS
SECTION 1.1 The regular annual meeting of the stockholders of this
Corporation shall be held at such place and at such time as shall be fixed by
the Board of Directors or by the Chairman of the Board of Directors.
SECTION 1.2 Special meetings of the stockholders of the Corporation or of
the holders of any one or more classes of the capital stock of the Corporation
entitled to vote as a class or classes with respect to any matter, as required
by law or as provided in the Certificate of Incorporation, shall be called by
the Secretary at the request of the Chairman of the Board of Directors or a
majority of the Board of Directors or of stockholders representing not less than
a majority in voting power of the shares of capital stock issued and outstanding
and entitled to vote at such meeting on such matter.
SECTION 1.3 Unless otherwise required by applicable law, notice of every
regular annual and every special meeting of the stockholders shall be given by
first-class mail, postage prepaid, mailed at least ten days (but not more than
sixty days) prior to the date of such meeting to each stockholder of record, as
defined in Section 7.3, entitled to vote at such meeting at his address as shown
upon the books of the Corporation.
SECTION 1.4 Nominations of persons for election to the Board of Directors
of the Corporation (other than persons to be elected as a "Class A Director" (as
defined in the Certificate of Incorporation of the Corporation)) at an annual
meeting of stockholders or at a special meeting of stockholders called for such
purposes may be made by or at the direction of the Board of Directors by a
majority vote of a committee of the Board of Directors comprised of all the
"Non-Class A Directors" (as defined in the Certificate of Incorporation of the
Corporation) or may be made at a meeting of stockholders by any holder of Common
Stock entitled to vote for the election of Directors (other than Class A
Directors) at the meeting, in compliance with the notice procedures set forth in
this Section 1.4. Such nominations, other than those made by or at the direction
of the Board of Directors by a majority vote of a committee of the Board of
Directors comprised of all the Non-Class A Directors, shall be made by a
stockholder of record pursuant to timely notice in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than seventy days nor more than ninety days prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced by more than twenty days, or
delayed by more than seventy days, from such anniversary date, notice by the
stockholder to be timely must be so delivered or mailed and received not earlier
than the ninetieth day prior to such annual meeting and not later than the close
of business on the later of the seventieth day prior to such annual meeting or
the tenth day following the day on which public announcement of the date of such
meeting is first made. Such stockholder's notice to the Secretary shall set
forth (i) as to each person whom such stockholder proposes to nominate for
election or re-election as a director, (a) the name, age, business address and
residence address of the person, (b) the principal occupation or employment of
the person, (c) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the person and (d) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended, including such person's
written consent to being named in the proxy statement as a nominee and to serve
as a Director if elected; and (ii) as to the stockholder giving the notice (a)
the name and record address of the stockholder, (b) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
stockholder and (c) whether the
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<PAGE> 2
stockholder intends or is part of a group which intends to solicit proxies from
other stockholders in support of such nomination. The Corporation may require
any proposed nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such proposed
nominee to serve as a Director of the Corporation. No person shall be eligible
for election as a Director of the Corporation (other than a Class A Director) at
a meeting of stockholders unless such person has been nominated in accordance
with the procedures set forth herein. If the facts warrant, the Chairman of the
meeting shall determine and declare to the meeting that a nomination does not
satisfy the requirements set forth in the preceding sentences and the defective
nomination shall be disregarded.
SECTION 1.5 At any annual meeting of stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by, or at the direction of,
the Board of Directors, (ii) otherwise properly brought before the meeting by,
or at the direction of, the Chairman of the meeting, or (iii) otherwise properly
brought before the meeting by a stockholder entitled to vote at such meeting.
For business to be properly brought before a meeting (other than business with
respect to which only the holders of the Class A Common Stock are entitled to
vote) by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and must have been a stockholder of
record at the time such notice is given. To be timely, a stockholder's notice
shall be delivered to or mailed and received at the principal executive offices
of the Corporation not less than seventy days nor more than ninety days prior to
the first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is advanced by more than
twenty days, or delayed by more than seventy days, from such anniversary date,
notice by the stockholder to be timely must be so delivered or mailed and
received not earlier than the ninetieth day prior to such annual meeting and not
later than the close of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice to the Secretary shall set forth (i) as to each matter the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, and (ii) as to the stockholder giving the notice (a)
the name and record address of the stockholder, (b) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
stockholder, (c) any material interest of the stockholder in such business and
(d) whether the stockholder intends or is part of a group which intends to
solicit proxies from other stockholders in support of such proposal. Except for
matters on which only holders of shares of Class A Common Stock are entitled to
vote, no business shall be conducted at an annual meeting of stockholders unless
proposed in accordance with the procedures set forth herein. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
foregoing procedure and such business shall not be transacted. To the extent
this Section 1.5 shall be deemed by the Board of Directors or the Securities and
Exchange Commission, or finally adjudged by a court of competent jurisdiction,
to be inconsistent with the right of stockholders to request inclusion of a
proposal in the Corporation's proxy statement pursuant to Rule 14a-8 promulgated
under the Securities Exchange Act of 1934, as amended, such rule shall prevail.
SECTION 1.6 At any meeting held for the purpose of electing Directors, (i)
the presence in person or by proxy of the holders of at least a majority in
voting power of the then outstanding shares of Class A Common Stock shall be
required and be sufficient to constitute a quorum of such class for the election
of Class A Directors by such class and (ii) the presence in person or by proxy
of the holders of at least a majority in voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote thereon at such
meeting (other than the shares of Class A Common Stock) shall be required and be
sufficient to constitute a quorum for the election of Directors other than Class
A Directors. At any such meeting or adjournment thereof the absence of a quorum
of the holders of Class A Common Stock shall not prevent the election of
Directors other than Class A Directors, and the absence of a quorum of the
holders of voting shares other than Class A Common Stock shall not prevent the
election of Class A Directors. At any meeting held for any purpose other than
the election of Directors, the holders of outstanding shares of capital stock of
the Corporation representing a majority of the votes entitled to be cast on such
matter, present in person or by proxy, shall constitute a quorum. The holders of
a majority of the shares present in person or by proxy at any
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<PAGE> 3
meeting may adjourn from time to time without notice (except as required by law)
other than by announcement at the meeting, until a quorum shall be present. In
addition, the Chairman of the Board may adjourn any such meeting from time to
time without notice (except as required by law) other than by announcement at
the meeting, whether or not a quorum shall be present. At all meetings of
stockholders every stockholder of record, as provided in Section 7.3, entitled
to vote shall be entitled to vote in person or by proxy appointed by instrument
in writing subscribed by such stockholder or his duly authorized attorney.
Except as otherwise provided in the Certificate of Incorporation, each
stockholder owning shares of stock in the Corporation, duly registered in his or
her name in the stock books of the Corporation, shall be entitled in all
stockholders' meetings to one vote for each share of stock so held, subject,
however, to the provisions of Section 7.3 of these By-laws with respect to the
determination of stockholders entitled to vote. At all meetings of stockholders
for the election of Directors a plurality of the votes cast shall be sufficient
to elect. All other elections and questions shall, unless otherwise provided by
the Certificate of Incorporation, these By-laws, the rules and regulations of
any stock exchange applicable to the Corporation, as otherwise provided by law
or pursuant to any regulation applicable to the Corporation or its securities,
be decided by the affirmative vote of the holders of a majority in voting power
of the shares of stock of the Corporation which are present in person or by
proxy and entitled to vote thereon.
SECTION 1.7 Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting pursuant to Section 1.3 of these By-laws and
called in accordance with Section 1.2 of these By-laws.
SECTION 1.8 The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting by the person presiding over the meeting. The Board of
Directors may adopt by resolution such rules and regulations for the conduct of
the meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the Chairman of any meeting of stockholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such Chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the Chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such other persons
as the Chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the Chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
ARTICLE II
DIRECTORS
SECTION 2.1 It shall be the duty of the Board of Directors to cause a
complete record to be kept of all of its meetings and acts, and to present a
full statement at the annual meeting of the stockholders, showing in detail the
assets and liabilities of the Corporation and the general condition of its
affairs.
SECTION 2.2 A meeting of the Board of Directors shall be held following the
annual meeting of the stockholders at the place of such annual meeting and as
soon as practicable thereafter, and no notice thereof shall be necessary.
Regular meetings of the Board of Directors shall be held on such days and at
such hours as shall from time to time be fixed by standing resolution of the
Board of Directors, and the meeting following the annual meeting of the
stockholders shall constitute a regular meeting. In the event that the day fixed
for any regular meeting of the Board of Directors shall fall on a legal holiday,
then such regular meeting shall be held at the same hour upon such day as the
Board of Directors may previously designate by resolution, and if no such day be
designated, then said meeting shall be held on the next succeeding day that is
not a holiday. Special meetings of the Board of Directors shall be called by the
Secretary when requested by the Chairman
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of the Board of Directors or by the Chief Executive Officer (or by the Chief
Operating Officer in the absence of the Chairman of the Board and the Chief
Executive Officer). Notice of the time and place of each meeting (other than
regular meetings) and each special meeting of the Board of Directors or any
committee thereof shall be sent to each Director or member of such committee, as
the case may be, by the Secretary, by facsimile transmission or by electronic
mail (if previously requested by such Director, in accordance with the
instructions provided by such Director or, in the case of the Class A Directors,
if no such instructions have been provided, to such Class A Director in care of
Citrus Parent at its principal executive offices), with a copy delivered by mail
or by recognized courier service, at least five days prior to the date fixed for
such meeting unless such notice requirement is waived by a majority of the Class
A Directors and a majority of the Non-Class A Directors (as defined in the
Certificate of Incorporation) who in each such case are members of the Board of
Directors or such committee, in which case such notice shall be sent by the
foregoing means or telephonically at least twenty-four hours prior to the date
and time fixed for such meeting. Each meeting of the Board of Directors shall be
held at the principal office of the Corporation unless the Board of Directors,
by standing resolution or otherwise, shall designate some other place where such
meeting shall be held.
SECTION 2.3 A majority of the members of the Board of Directors, including
a majority of the Non-Class A Directors, shall be necessary to constitute a
quorum for the transaction of business at each meeting of the Board of
Directors. Except in cases in which the Certificate of Incorporation or these
By-laws (including without limitation Section 2.7 hereof) otherwise provide, the
vote of a majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
SECTION 2.4 Except as provided herein or in the Certificate of
Incorporation, each Director shall serve until the election and qualification of
his successor.
SECTION 2.5 The Board of Directors shall have the general supervision and
control of all of the business and affairs of the Corporation. Without prejudice
to the generality of such power the Board of Directors shall have power:
A. To appoint its own Chairman and, subject to Section 3.4 and the
Certificate of Incorporation of the Corporation, all officers and remove
them at pleasure, fix the compensation of all officers, review and control
the compensation of all employees, and require from any officers or
employees such bonds or other security as the Board of Directors may deem
advisable for the faithful performance of their duties;
B. To fill vacancies in the directorate, except as otherwise provided
in the Certificate of Incorporation;
C. To call meetings of stockholders whenever it shall deem the same
necessary;
D. To make rules and regulations not inconsistent with law, the
Certificate of Incorporation or these By-laws for the guidance and
government of the officers and the management of the Corporation's affairs;
E. To declare and fix the rate of dividends to be paid to
stockholders, subject to applicable law and the Certificate of
Incorporation;
F. To borrow money and incur such indebtedness as may seem advisable
and to authorize the execution of the Corporation's note therefor and make
pledges of securities in connection therewith;
G. To appoint agents to act for the Corporation and to confer upon
them such powers or authority as it may deem best and fix the compensation
of such agents by salary or otherwise in its discretion, but it shall
always retain the right to suspend or remove such agents and annul any
power or authority which may have been granted to them;
H. To designate the principal place of business of the Corporation at
such place as the Board of Directors may deem advisable, and to establish
such branch offices, divisions, departments, or subsidiary corporations and
to enter any partnership, joint venture, trust or other association the
Board of Directors may deem advisable; and
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I. To direct and control the voting of the shares of stock or other
voting interest held by the Corporation in any other corporation,
partnership, joint venture, trust or other association, by an officer of
the Corporation duly authorized by the Board of Directors or by a proxy so
duly authorized.
SECTION 2.6 Notwithstanding that a lesser vote or no vote of the Board of
Directors (or the executive committee thereof) may be required by law or the
Certificate of Incorporation, any transaction between the Corporation and any
stockholder who beneficially owns 10% or more of the total number of outstanding
shares of Common Stock and Class A Common Stock of the Corporation, or otherwise
relating to such stockholder, shall require the approval of, in addition to any
other vote of the Board of Directors (or the executive committee thereof)
required by law or the Certificate of Incorporation, a majority vote of a
committee of the Board of Directors of the Corporation comprised of all the
Independent Directors (as defined below) then in office. For purposes of this
Section 2.6, "Independent Director" means any director who is not an affiliate
or past or present officer, director or employee of, and was not nominated by,
such stockholder or any of its affiliates, and is not associated with an entity
that performs substantial services for any of the foregoing.
SECTION 2.7 Notwithstanding that a lesser vote or no vote of the Board of
Directors (or a committee thereof) may be required by law or the Certificate of
Incorporation, and in addition to any other vote of the Board of Directors (or a
committee thereof) required by law or the Certificate of Incorporation, the
affirmative vote of two-thirds of the Directors constituting the entire Board of
Directors of the Corporation shall be required for approval of the following
actions:
I. Any distributions or dividends of securities or other property
(other than cash and other than dividends payable in shares of Common Stock
or Class A Common Stock), if the Fair Market Value (as defined below)
thereof equals or exceeds 10% of the Consolidated Net Worth of the
Corporation (as defined below) as of the date of any such action of the
Board of Directors.
II. Any repurchase or redemption of outstanding equity securities of
the Corporation if the gross consideration to be paid for such repurchase
or redemption, together with the gross consideration paid for all such
repurchases or redemptions in the preceding twelve month period but net of
the amount of the net proceeds from the issuance of other equity securities
in such period, equals or exceeds 10% of the Consolidated Net Worth of the
Corporation as of the date of any such action by the Board of Directors.
III. A decision by the Board of Directors to consent to or enter into
any cease and desist order or formal agreement with any bank regulatory
authority or other governmental agency which would adversely affect the
interests of the holders of the Class A Common Stock in the good faith
opinion of the Class A Directors (as set forth in a resolution duly adopted
by a majority of such Class A Directors).
For purposes of this Section 2.7:
"Consolidated Net Worth" as of any date means the total of all
amounts that are included under stockholders' equity as shown on the
most recently available consolidated financial statements of the
Corporation and its subsidiaries.
"Fair Market Value" means, as to any securities or other property,
the cash price at which a willing seller would sell and a willing buyer
would buy such securities or property in an arm's-length negotiated
transaction without time constraints. For purposes of these By-laws,
Fair Market Value shall be determined in good faith by the affirmative
vote of a majority of the Directors constituting the entire Board of
Directors of the Corporation.
SECTION 2.8 No action may be taken at a meeting of the Board of Directors
with respect to any matter that was not previously set forth on an agenda for
such meeting delivered to the Directors prior to such meeting if either a
majority of the Class A Directors present at such meeting or a majority of the
Non-Class A Directors present at such meeting oppose taking action at such
meeting with respect to such matter.
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ARTICLE III
OFFICERS; DUTIES OF OFFICERS
SECTION 3.1 The officers of the Corporation shall be a President, and one
or more Vice Presidents, any one or more of whom may also be designated as
Executive or Senior Vice Presidents, a Secretary, a Treasurer, a Chief Executive
Officer, a Chief Operating Officer and such other officers as the Corporation
may require for the transaction of its business. All officers shall be elected
or appointed by the Board of Directors or the Executive Committee as these
By-laws further provide and by whom their several duties shall be prescribed and
who, subject to Section 3.4, shall hold their offices at the pleasure of the
Board of Directors or the Executive Committee, subject to the authority of the
Board of Directors if the Executive Committee was the appointing power. There
may be a Chairman of the Board of Directors who shall be appointed by the Board
of Directors from its own members and who shall have such powers as may be
prescribed by these By-Laws or, if and to the extent that these By-Laws shall
not so prescribe, by the Board of Directors.
SECTION 3.2 The Chairman of the Board of Directors shall preside at all
meetings of the stockholders and of the Board of Directors, and shall perform
such other duties and have such other powers as may be assigned to him by these
By-laws or the Board of Directors. If a Director other than the President shall
have been appointed Chairman of the Board of Directors, then in the absence of
the Chairman the President shall preside, and in the absence of both the
Chairman of the Board of Directors and the President, or in the absence of the
President if the President shall be the Chairman of the Board of Directors, any
other Director designated by the Board of Directors shall preside.
SECTION 3.3 The President shall exercise general supervision of the
property, affairs and business of the Corporation, and shall perform such duties
and exercise such power as may be assigned to him by these By-laws or the Board
of Directors. In the absence or disability of the President, his powers shall be
exercised and discharged by the Vice President designated by the Board of
Directors, or, in the absence or disability of him, by such other officer or
officers as the Board of Directors may designate.
SECTION 3.4 (a) The Board of Directors may from time to time designate the
Chairman of the Board of Directors or the President as the Chief Executive
Officer of the Corporation. If the Chairman of the Board of Directors shall have
been so designated as Chief Executive Officer, then in the absence or disability
of the Chairman of the Board of Directors, the President shall perform the
duties and have the power of Chief Executive Officer. If the Board of Directors
shall not have designated either the Chairman of the Board of Directors or the
President as Chief Executive Officer, then unless and until the Board of
Directors shall make such a designation, the President shall be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall be
responsible for the general direction of the property, business, affairs and
personnel of the Corporation, and shall have all requisite power and authority
to carry out such responsibility. He shall be responsible for carrying out and
effectuating, and shall have full power, directly or through such officers as he
may designate, to carry out and effectuate such policies and procedures for the
governance and conduct of the affairs of the Corporation as are adopted by the
Board of Directors or prescribed by law.
(b) The Board of Directors may from time to time designate a Chief
Operating Officer of the Corporation. The Chief Operating Officer shall perform
the duties imposed upon him by these By-laws, the Board of Directors, the
Executive Committee or the Chief Executive Officer. If the Chief Executive
Officer is not the President, then the Chief Operating Officer shall be the
President. If the Chief Executive Officer shall be the President, then the Chief
Operating Officer shall be senior to all other Vice Presidents of the
Corporation.
(c) The persons so designated from time to time as the Chief Executive
Officer and the Chief Operating Officer shall continue to serve in such capacity
until such time as the Board of Directors of the Corporation, by a vote of
two-thirds of the Directors constituting the entire Board of Directors, votes to
terminate such designation or until such person's death, voluntary retirement or
resignation. In order to be elected to fill a vacancy in the office of Chief
Executive Officer or Chief Operating Officer, the person nominated pursuant to
the provisions of paragraph (b) of Article Seventh of the Certificate of
Incorporation shall be required to be approved by the affirmative vote of
two-thirds of the directors then in office.
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SECTION 3.5 Each Vice President shall perform the duties imposed upon him
by these By-laws, the Board of Directors, the Executive Committee or the Chief
Executive Officer. The Vice President senior in rank to all other Vice
Presidents, including Executive and Senior Vice Presidents, shall be as
designated by the Board of Directors.
SECTION 3.6 The Secretary shall have charge and custody of the corporate
seal, records and minute books of the Corporation, and he shall keep correct
written minutes of all meetings of stockholders, the Board of Directors and the
Executive Committee. He shall give or cause to be given notice of all meetings
of the stockholders and of the Board of Directors in accordance with these
By-laws and as required by law, and shall perform such other duties as may be
imposed upon him by law, these By-laws, the Board of Directors, the Executive
Committee or by the Chief Executive Officer. The duties of the Secretary may be
performed by any Assistant Secretary appointed by the Board of Directors or by
the Executive Committee.
SECTION 3.7 The Treasurer shall be the chief financial officer of the
Corporation and exercise general supervision over the receipt, custody and
disbursement of corporate funds. He shall perform such other duties as may be
imposed upon him by law, these By-laws, the Board of Directors, the Executive
Committee or the Chief Executive Officer. The duties of the Treasurer may be
performed by any Assistant Treasurer appointed by the Board of Directors or by
the Executive Committee.
SECTION 3.8 Subject to the prior authority of the Board of Directors,
additional officers may be appointed by the Executive Committee and the salaries
of such officers may be fixed by the Executive Committee.
ARTICLE IV
COMMITTEES
SECTION 4.1 There may be a committee to be known as the Executive Committee
consisting of the following: the Chief Executive Officer (so long as he is a
Director, who shall be the Chairman of the Executive Committee), the Chief
Operating Officer (so long as he is a Director) and not less than three
additional Directors appointed by a committee comprised of the Chief Executive
Officer, all of such members of the Executive Committee shall continue to act
until succeeded. The members of the Executive Committee appointed pursuant to
the foregoing sentence shall include such number of Class A Directors as Citrus
Parent has the right to so request pursuant to Section 5.3 of the Standstill and
Governance Agreement (as defined in the Certificate of Incorporation of the
Corporation). The Executive Committee shall have, to the extent not specifically
restricted by law or by these By-laws, all of the powers of the Board of
Directors in the management of the property, business and affairs of the
Corporation during the intervals between meetings of the Board of Directors.
This Committee shall have the power to discount and purchase bills, notes and
other evidences of debt and to meet regularly each week; to confer with and
advise the officers of the Corporation; to act with them in its best judgment as
to the general management of the business and affairs of the Corporation and to
adopt such measures as may be deemed expedient. No action may be taken by the
Executive Committee without the affirmative vote of each of the members thereof.
This Committee shall, at each regular meeting of the Board of Directors, submit
in writing a report of all matters and things done by it since its last report.
The Board of Directors shall approve or disapprove such report, the action taken
to be recorded in the minutes of the meeting.
SECTION 4.2 Except as otherwise provided in the Certificate of
Incorporation of the Corporation or these By-Laws, the Board of Directors may
appoint, from time to time, from its own members, other committees of two or
more persons, for such purposes and with such powers as the Board of Directors
may determine.
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ARTICLE V
SEAL
SECTION 5.1 The corporate seal of the Corporation shall be of such form and
device as may from time to time be designated by the Board of Directors. The
Board of Directors may determine that the Corporation shall have no seal.
ARTICLE VI
MINUTE BOOKS
SECTION 6.1 The Certificate of Incorporation, the proceedings of all
regular and special meetings of the Board of Directors and any committee
thereof, and of the stockholders, these By-laws and any amendments thereto and
reports of the committees of the Directors shall be recorded in the minute book;
and the minutes of each such meeting shall be signed by the presiding officer
and the Secretary or an Assistant Secretary or a secretary pro tempore.
ARTICLE VII
CERTIFICATES AND TRANSFERS OF STOCK
SECTION 7.1 Certificates and stock of the Corporation shall be in such form
as shall be approved by the Board of Directors. The certificates shall be sealed
with the corporate seal, if any, and signed by the President or a Vice President
and the Secretary or an Assistant Secretary; provided, that the Board of
Directors may provide that certificates shall be sealed only with the facsimile
seal of the Corporation and signed only with the facsimile signature of the
President or a Vice President and the Secretary or an Assistant Secretary. The
name of the person owning the shares represented by each certificate, with the
number of such shares and the date of issue, shall be entered upon the stock
records of the Corporation.
SECTION 7.2 Transfer of shares of stock may be made by delivery of the
certificates therefor, endorsed by the holder of record thereof, or accompanied
by a written assignment or power of attorney to sell, assign or transfer the
same, signed by the holder of record thereof; but no transfer shall affect the
right of the Corporation to pay any dividends upon the stock to the holder of
record thereof, or to treat the holder of record as the holder in fact thereof
for all purposes, and no transfer shall be valid, except between the parties
thereto, until such transfer shall have been made upon the books of the
Corporation.
SECTION 7.3 In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
sixty nor less than ten days from the date of such meeting; (2) in the case of
determination of stockholders to express consent to action in writing without a
meeting, shall not be less than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors; and (3)
in the case of any other action, shall not be more than sixty days prior to such
action. If no record date is fixed: (1) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in accordance with applicable law, or if prior action by the Board
of Directors is required by law, shall be at the close of business on the day
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on which the Board of Directors adopts the resolution taking such prior action;
and (3) the record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 7.4 In case of the loss, mutilation or destruction of any
certificate of any share or shares of stock of the Corporation, a duplicate
certificate may be issued upon such terms as the Board of Directors may
prescribe.
SECTION 7.5 The Corporation shall not be obliged to issue any certificate
of stock evidencing, either singly or with other shares, any fractional part of
a share or any undivided interest in shares.
ARTICLE VIII
EMERGENCIES
SECTION 8.1 In the event of an emergency declared by the President of the
United States or the person performing his functions, or similar officials in
the state in which the Corporation has its principal place of business or the
persons performing their functions, the officers and employees of the
Corporation will continue to conduct the affairs of the Corporation under such
guidance from the Board of Directors as may be available except as to such
matters which by statute require specific approval by the Board of Directors and
subject to conformance with any governmental directives during the emergency.
ARTICLE IX
CONSTRUCTION
SECTION 9.1 Except where such construction would be repugnant to the
context, whenever used in these By-laws, the word "Corporation" shall mean
BancWest Corporation, the singular includes the plural, and vice versa; the
masculine gender includes the feminine gender; and the words "stockholder" and
"stockholders" shall mean the holder or holders of outstanding shares of capital
stock of the Corporation.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 To the extent permitted by Delaware law from time to time in
effect, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action or suit by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or, while a director,
officer, employee or agent of the Corporation, is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 10.2 To the extent permitted by Delaware law from time to time in
effect, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
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pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person is or was
a director, officer, employee or agent of the Corporation, or, while a director,
officer, employee or agent of the Corporation, is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
SECTION 10.3 To the extent that a present or former director or officer or
an employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections
10.1 and 10.2, or in defense of any claim, issue or matter therein, such person
shall be indemnified by the Corporation against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
SECTION 10.4 Any indemnification under Sections 10.1 and 10.2 (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because such
person has met the applicable standard of conduct set forth in said Sections
10.1 and 10.2. Such determination shall be made, with respect to a person who is
a director or officer at the time of such determination, (1) by a majority vote
of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, event though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by independent
legal counsel (compensated by the Corporation) in a written opinion, or (4) by
the stockholders.
SECTION 10.5 Expenses incurred by a present or former Director or officer
of the Corporation in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Corporation as
authorized in this Article. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the employee or agent to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article.
SECTION 10.6 The indemnification and advancement of expenses provided by
this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
SECTION 10.7 The indemnification and advancement of expenses provided by or
granted pursuant to this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 10.8 The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation, as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Article or of
Section 145 of the General Corporation Law of Delaware, as it may be amended or
substituted for.
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SECTION 10.9 Notwithstanding Sections 10.1 and 10.2 hereof, except as
otherwise provided in Section 10.10, the Corporation shall be required to
indemnify an indemnitee in connection with any action, suit or proceeding (or
part thereof) commenced by such indemnitee only if the commencement of such
action, suit or proceeding (or part thereof) by the indemnitee was authorized by
the Board of Directors.
SECTION 10.10 If a claim for indemnification or advancement of expenses
under this Article is not paid in full within sixty days after a written claim
therefor by the indemnitee has been received by the Corporation, the indemnitee
may file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving that
the indemnitee is not entitled to the requested indemnification or advancement
of expenses under applicable law.
SECTION 10.11 Any repeal or modification of the foregoing provisions of
this Article shall not adversely affect any right or protection hereunder of any
indemnitee in respect of any act or omission occurring prior to the time of such
repeal or modification.
11
<PAGE> 1
EXHIBIT 4(I)
- --------------------------------------------------------------------------------
STANDSTILL AND GOVERNANCE AGREEMENT
BETWEEN
FIRST HAWAIIAN, INC.
AND
BANQUE NATIONALE DE PARIS
DATED AS OF NOVEMBER 1, 1998
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
ARTICLE I
DEFINITIONS............................................................... 1
SECTION 1.1 Certain Defined Terms....................................... 1
SECTION 1.2 Other Defined Terms......................................... 6
SECTION 1.3 Other Definitional Provisions............................... 6
SECTION 1.4 Methodology for Calculations................................ 7
STANDSTILL................................................................ 7
SECTION 2.1 Acquisition of Additional Voting Securities................. 7
SECTION 2.2 Certain Restrictions........................................ 11
SECTION 2.3 Notice of Certain Events; Press Releases, etc............... 12
SECTION 2.4 Post-Standstill Period...................................... 12
TRANSFER RESTRICTIONS..................................................... 14
SECTION 3.1 General Transfer Restrictions............................... 14
SECTION 3.2 Restrictions on Transfer.................................... 14
SECTION 3.3 Right of First Refusal...................................... 15
SECTION 3.4 Transferees................................................. 17
VOTING.................................................................... 17
SECTION 4.1 Voting on Certain Matters................................... 17
SECTION 4.2 Irrevocable Proxy........................................... 17
SECTION 4.3 Quorum...................................................... 18
CORPORATE GOVERNANCE...................................................... 18
SECTION 5.1 Composition of the Board.................................... 18
SECTION 5.2 Agenda...................................................... 19
SECTION 5.3 Committees.................................................. 19
SECTION 5.4 Certain Officers............................................ 19
SECTION 5.5 Regulatory Cooperation...................................... 19
MISCELLANEOUS............................................................. 20
SECTION 6.1 Conflicting Agreements...................................... 20
SECTION 6.2 Duration of Agreement....................................... 20
SECTION 6.3 Ownership Information....................................... 20
SECTION 6.4 Further Assurances.......................................... 20
SECTION 6.5 Amendment and Waiver........................................ 20
SECTION 6.6 Severability................................................ 21
SECTION 6.7 Entire Agreement............................................ 21
SECTION 6.8 Successors and Assigns...................................... 21
SECTION 6.9 Counterparts................................................ 21
SECTION 6.10 Remedies.................................................... 21
SECTION 6.11 Notices..................................................... 21
SECTION 6.12 Governing Law; Consent to Jurisdiction...................... 22
SECTION 6.13 Legends..................................................... 23
SECTION 6.14 Interpretation.............................................. 24
SECTION 6.15 Effectiveness............................................... 24
</TABLE>
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<PAGE> 3
STANDSTILL AND GOVERNANCE AGREEMENT
STANDSTILL AND GOVERNANCE AGREEMENT dated as of November 1, 1998 between
First Hawaiian, Inc., a Delaware corporation (the "Company"), and Banque
Nationale de Paris, a societe anonyme or limited liability banking corporation
organized under the laws of the Republic of France ("BNP").
WHEREAS, the Company and BancWest Corporation, a corporation organized
under the laws of California and a subsidiary of BNP ("BancWest"), entered into
an Agreement and Plan of Merger, dated as of May 28, 1998 (the "Merger
Agreement"), pursuant to which and subject to the terms and conditions thereof,
among other things, BancWest will merge (the "Merger") with and into the Company
and all of the outstanding shares of common stock, without par value, of
BancWest will be converted into shares of Class A Common Stock (as defined
herein);
WHEREAS, upon the closing of the Merger (the "Closing"), BNP will
Beneficially Own (as defined herein), directly and through its Subsidiaries (as
defined herein) 45% of the issued and outstanding Company Common Shares (as
defined herein);
WHEREAS, it is a condition to the obligations of each of the Company and
BancWest to consummate the Merger pursuant to the Merger Agreement that this
Agreement shall have been duly executed and delivered by the Company and BNP;
and
WHEREAS, the parties hereto desire to enter into this Agreement to
establish certain arrangements with respect to the Company Common Shares to be
Beneficially Owned by BNP and its Affiliates following the closing of the
Merger, as well as restrictions on certain activities in respect of the Company
Common Shares, corporate governance and other related corporate matters.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person;
provided, however, that solely for purposes of this Agreement,
notwithstanding anything to the contrary set forth herein, neither the
Company nor any of its Subsidiaries shall be deemed to be a Subsidiary or
Affiliate of BNP solely by virtue of BNP's ownership of the Class A Common
Stock or Common Stock, the election of Class A Directors nominated by it to
the Board or any other action taken by BNP or its Affiliates which is
permitted under this Agreement, in each case in accordance with the terms
and conditions of, and subject to the limitations and restrictions set
forth in, this Agreement (and irrespective of the characteristics of the
aforesaid relationships and actions under applicable law or accounting
principles).
"Agreement" means this Standstill and Governance Agreement as it may
be amended, supplemented, restated or modified from time to time.
"Beneficial Ownership" by a Person of any securities includes
ownership by any Person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or shares (i)
voting power which includes the power to vote, or to direct the voting of,
such security; and/or (ii) investment power which includes the power to
dispose, or to direct the disposition of, such security;
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and shall otherwise be interpreted in accordance with the term "beneficial
ownership" as defined in Rule 13d-3 adopted by the Commission under the
Exchange Act; provided that for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of any
securities which may be acquired by such Person (irrespective of whether
the right to acquire such securities is exercisable immediately or only
after the passage of time, including the passage of time in excess of 60
days, the satisfaction of any conditions, the occurrence of any event or
any combination of the foregoing) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise. For purposes of this Agreement, a Person
shall be deemed to Beneficially Own any securities Beneficially Owned by
its Affiliates or any Group of which such Person or any such Affiliate is
or becomes a member.
"BHC Act" means the Bank Holding Company Act of 1956, as amended (or
any successor statute), and the rules and regulations of the Board of
Governors of the Federal Reserve System promulgated thereunder (or under
any successor statute).
"Board" means the Board of Directors of the Company.
"Business Combination Proposal" means any proposal with respect to a
merger or consolidation in which the Company is a constituent corporation
or a sale, lease, exchange or mortgage of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole and pursuant to
any of which transactions all of the Company Common Shares (other than
those, if any, which are Beneficially Owned by BNP and its Affiliates)
would be exchanged for cash, securities or other property, and, solely for
purposes of Sections 2.1(c), 2.2(b), 2.2(c) and 2.4(b), a tender or
exchange offer for any and all of the outstanding Company Common Shares.
Any Business Combination Proposal submitted by BNP pursuant to this
Agreement shall be a proposal for the acquisition of not less than 100% of
the issued and outstanding Company Common Shares (other than those which
are Beneficially Owned by BNP and its Affiliates).
"Business Day" shall mean any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized by law to be closed in
Honolulu, Hawaii, San Francisco, California or Paris, France.
"By-Laws" means the By-Laws of the Company, as amended or supplemented
from time to time.
"Capital Stock" means, with respect to any Person at any time, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of capital stock, partnership
interests (whether general or limited) or equivalent ownership interests in
or issued by such Person.
"Change of Control" means (i) any Person becomes the Beneficial Owner
of more than 50% of the total voting power of the outstanding Voting
Securities of the Company, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Non-Class A
Directors (together with any new Non-Class A Directors whose election by
such Non-Class A Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of a majority of the
Non-Class A Directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Directors of the Company then in office, (iii) a merger or
consolidation of the Company with or into another Person or the merger or
consolidation of another Person into the Company, as a result of which
transaction or series of related transactions (A) any Person becomes the
Beneficial Owner of more than 50% of the total voting power of all Voting
Securities of the Company (or, if the Company is not the surviving or
transferee company of such transaction or transactions, of such surviving
or transferee company) outstanding immediately after such transaction or
transactions, or (B) the shares of Company Common Stock outstanding
immediately prior to such transaction or transactions do not represent a
majority of the voting power of all Voting Securities of the Company (or
such surviving or transferee company, if not the Company) outstanding
immediately after such transaction or transactions, (iv) the sale, lease,
exchange or mortgage of all or substantially all of the assets of the
Company and its
2
<PAGE> 5
Subsidiaries, or (v) the approval by the stockholders of the Company of a
plan of liquidation or dissolution of the Company.
"Class A Common Stock" means the class A common stock, par value $1.00
per share, of the Company and any securities issued in respect thereof, or
in substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization.
"Class A Director" means any Class A Nominee who is elected or
appointed as a Class A Director of the Company and is then serving in such
capacity.
"Class A Holders" means (i) BNP and (ii) any Affiliate of BNP or any
Qualified Transferee to which shares of Class A Common Stock have been
Transferred in accordance with Sections 3.2(c)(iii) and 3.2(c)(vi) hereof,
respectively.
"Class A Nominee" means any Person proposed by the Class A Holders for
election or appointment as a Class A Director pursuant to the Restated
Charter.
"Commission" means the United States Securities and Exchange
Commission.
"Company Common Shares" means, collectively, the Company Common Stock
and the Class A Common Stock.
"Company Common Stock" means the common stock, par value $1.00 per
share, of the Company (other than the Class A Common Stock) and any
securities issued in respect thereof, or in substitution therefor, in
connection with any stock split, dividend or combination, or any
reclassification, recapitalization, merger, consolidation, exchange or
other similar reorganization.
"control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly, of the power to
direct or cause the direction of the affairs or management of a Person,
whether through the ownership of voting securities, as trustee or executor,
by contract or any other means, or otherwise to control such Person within
the meaning of such term as used in Section 2(e) of Regulation Y; provided,
however, that solely for purposes of this Agreement, notwithstanding
anything to the contrary set forth herein, neither the Company nor any of
its Subsidiaries shall be deemed to be controlled by or under common
control with BNP or any of its Affiliates solely by virtue of BNP's
ownership of the Class A Common Stock or Common Stock, the election of
Class A Directors nominated by it to the Board or any other action taken by
BNP or its Affiliates which is permitted under this Agreement, in each case
in accordance with the terms and conditions of, and subject to the
limitations and restrictions set forth in, this Agreement (and irrespective
of the characteristics of the aforesaid relationships and actions under
applicable law or accounting principles).
"Current Market Value" means, with respect to any security, the
average of the daily closing prices on the Nasdaq National Market (or the
principal exchange or market on which such security may be listed or may
trade) for such security for the 20 consecutive trading days commencing on
the 22nd trading day prior to the date as of which the Current Market Value
is being determined. The closing price for each day shall be the closing
price, if reported, or, if the closing price is not reported, the average
of the closing bid and asked prices as reported by the Nasdaq National
Market (or such principal exchange or market) or a similar source
reasonably and in good faith selected from time to time by the Company for
such purpose. In the event such closing prices are unavailable, the Current
Market Value shall be the Fair Market Value of such security established by
an Independent Investment Banking Firm in accordance with the procedures
specified in Section 3.3(f).
"Director" means any member of the Board (other than any advisory,
honorary or other non-voting member of the Board).
"Equity Securities" means any and all shares of Capital Stock of the
Company, securities of the Company convertible into, or exchangeable for,
such shares, and options, warrants or other rights to
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<PAGE> 6
acquire such shares (regardless of whether such securities, options,
warrants or other rights are then exercisable or convertible).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor statute).
"Executive Committee" means the Executive Committee of the Board, as
duly constituted from time to time (subject to Section 5.2).
"Fair Market Value" means, as to any securities or other property, the
cash price at which a willing seller would sell and a willing buyer would
buy such securities or property in an arm's-length negotiated transaction
without time constraints.
"Group" shall have the meaning assigned to it in Section 13(d)(3) of
the Exchange Act.
"Independent Director" means (except as set forth in the proviso
hereto) any Non-Class A Director who is not an Affiliate or a past or
present officer, director or employee of, and was not nominated by, BNP or
any of its Affiliates, and is not associated with an entity that performs
substantial services for any of the foregoing; provided that, solely when
used with respect to any action to be taken by the Board or the Executive
Committee relating to a transaction or proposed transaction with, or
otherwise relating to any other holder of 10% or more of the outstanding
Company Common Shares (or 10% or more of any other class of Voting
Securities of the Company), the term Independent Director shall mean any
director who is not an Affiliate or a past or present officer, director or
employee of, and was not nominated by, such stockholder (or other
securityholder) or any of its Affiliates, and is not associated with an
entity that performs substantial services for any of the foregoing.
"Independent Investment Banking Firm" means an investment banking firm
of nationally recognized standing that is, in the reasonable judgment of
the Person or Persons engaging such firm, independent of such Person or
Persons and qualified to perform the task for which it has been engaged.
"Initial Ownership Percentage" means the Ownership Percentage of BNP
and its Affiliates immediately following the Closing.
"Non-Class A Directors" means the Directors who are not Class A
Directors.
"Ownership Percentage" means, at any time, the ratio, expressed as a
percentage, (i) of the total Equity Securities Beneficially Owned by BNP
and its Affiliates to (ii) the sum of (x) the total number of outstanding
Company Common Shares and (y) any Company Common Shares that are issuable
upon conversion, exchange or exercise of any Equity Securities included in
clause (i); provided, however, that shares subject to options under Company
benefit plans granted or shares otherwise issued under Company benefit
plans to any Person who, at the time of the grant or issuance, was an
officer or director of the Company or any of its Subsidiaries shall not be
deemed to be Equity Securities Beneficially Owned by BNP or any of its
Affiliates; and provided further, however, that Equity Securities
Beneficially Owned by BNP and its Affiliates shall not include, for
purposes of clause (i) above, any Equity Securities held by BNP and its
Subsidiaries in trust, managed, custodial or nominee accounts and the like,
or held by mutual funds for which BNP or one of its Subsidiaries acts as
investment advisor, in each case for the benefit of customers of BNP and
its Subsidiaries ("Trust Account Shares"), provided that (A) such Trust
Account Shares were acquired by BNP or its Subsidiaries in the ordinary
course of their banking or investment management businesses, solely for
investment and not with the intent or purpose of influencing control of the
Company or avoiding the provisions of this Agreement, and (B) to the extent
that such Trust Account Shares at any time constitute in the aggregate more
than four percent of the Company's then outstanding Voting Securities (such
excess shares, the "Excess Trust Shares"), BNP shall, and shall cause its
Subsidiaries which hold any such Excess Trust Shares to, (x) vote such
Excess Trust Shares on all matters submitted to a vote of stockholders of
the Company in the same proportion as the stockholders of the Company other
than BNP and its Affiliates vote (or, if BNP or such Subsidiaries are not
legally permitted to so vote such Excess Trust Shares, BNP shall, and shall
cause any of its Subsidiaries which hold any such shares to, vote a number
of Company Common Shares having the same
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voting power as such Excess Trust Shares in the same proportion as the
stockholders of the Company other than BNP and its Affiliates vote), and
(y) BNP shall, and shall cause its Subsidiaries to, use all reasonable
efforts to either reduce its aggregate Beneficial Ownership of such Trust
Account Shares to four percent or less of the Company's then outstanding
Voting Securities or Transfer (pursuant to clauses (i) or (ii) of Section
3.2(c)) a sufficient number of other Equity Securities having aggregate
voting power equal to the Excess Trust Shares. For purposes of Section
5.1(b) only, the Ownership Percentage shall include the Equity Securities
Beneficially Owned by any Qualified Transferee in addition to the Equity
Securities Beneficially Owned by BNP and its Affiliates.
"Permitted Ownership Percentage" means, immediately following the
Closing, the Initial Ownership Percentage and thereafter, such Ownership
Percentage as may be permitted under the terms of this Agreement to be
Beneficially Owned by BNP and its Affiliates from time to time; provided
that except as expressly permitted by Sections 2.1 and 2.4 hereof, in no
event shall the Permitted Ownership Percentage be greater than the Initial
Ownership Percentage.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, other entity, government or
any agency or political subdivision thereof or any Group comprised of two
or more of the foregoing.
"Prime Rate" means the prime rate, base lending rate or similar bench
mark rate in effect from time to time as announced by The Chase Manhattan
Bank (or any successor institution).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, between the Company and BNP.
"Regulation Y" means Regulation Y (12 C.F.R. Part 225) or any
successor regulation, as promulgated by the Board of Governors of the
Federal Reserve System under the BHC Act.
"Restated Charter" means the amended Certificate of Incorporation of
the Company, the form of which is set forth in Exhibit A to the Merger
Agreement, as amended or supplemented from time to time.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission from time to time
thereunder (or under any successor statute).
"Standstill Period" shall mean the period commencing on the Closing
and continuing until the fourth anniversary of the Closing.
"Subsidiary" means, with respect to any Person, any corporation or
other organization, whether incorporated or unincorporated, (x) of which
such Person or any other Subsidiary of such Person is a general partner
(excluding partnerships, the general partnership interests of which held by
such Person or any Subsidiary of such Person do not have a majority of the
voting interests in such partnership), or (y) at least a majority of the
securities or other interests of which having by their terms ordinary
voting power to elect a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person
or by any one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries.
"Transfer" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of (by operation of law
or otherwise), either voluntarily or involuntarily, or to enter into any
contract, option or other arrangement or understanding with respect to the
sale, transfer, assignment, pledge, encumbrance, hypothecation or similar
disposition of (by operation of law or otherwise), any Equity Securities or
any interest in any Equity Securities, provided, however, that a merger or
consolidation in which BNP or any of its Affiliates is a constituent
corporation shall not be deemed to be the Transfer of any Equity Securities
Beneficially Owned by such Person (provided, that the primary purpose of
any such transaction is not to avoid the provisions of this Agreement and
that the successor or surviving Person to such merger or consolidation, if
not BNP or such Affiliate, expressly assumes all obligations of BNP or such
Affiliate, as the case may be, under this Agreement). For purposes of this
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Agreement, the term Transfer shall include the sale of an Affiliate or
BNP's interest in an Affiliate which Beneficially Owns Company Common
Shares.
"Voting Securities" means at any time shares of any class of Capital
Stock or other securities of the Company which are then entitled to vote
generally in the election of Directors and not solely upon the occurrence
and during the continuation of certain specified events.
SECTION 1.2 Other Defined Terms. The following terms shall have the
meanings defined for such terms in the Sections set forth below:
<TABLE>
<CAPTION>
TERM SECTION
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<S> <C>
Acquisition Restrictions.................................... Section 2.1(a)
Acquisition Restrictions Termination Events................. Section 2.1(b)
Appraisal................................................... Section 3.3(f)
Average Price............................................... Section 2.1(f)
BancWest.................................................... Preamble
BNP......................................................... Preamble
BNP Repurchase.............................................. Section 2.1(f)
Closing..................................................... Recitals
Company..................................................... Preamble
Company Repurchase.......................................... Section 2.1(f)
Excess Trust Shares......................................... Section 1.1
Litigation.................................................. Section 6.12(a)
Market Check Period......................................... Section 2.4(b)
Market Sale Option.......................................... Section 2.1(f)
Merger Agreement............................................ Recitals
Notice...................................................... Section 6.11
Offer Price................................................. Section 3.3(b)
Permitted Transferee........................................ Section 3.2(c)
Post-Standstill Period...................................... Section 2.4(a)
Process Agent............................................... Section 6.12(b)
Proxy Information........................................... Section 5.1(b)
Qualified Pledgee........................................... Section 3.2(c)
Qualified Transferee........................................ Section 3.2(c)
Repurchase Number of Shares................................. Section 2.1(f)
Repurchase Option........................................... Section 2.1(f)
Repurchase Price............................................ Section 2.1(f)
Required Repurchase Event................................... Section 2.1(f)
Superior Proposal........................................... Section 2.4(b)
Term........................................................ Section 6.2
Third Party................................................. Section 2.1(b)
Transfer Measurement Date................................... Section 2.1(e)
Transfer Notice............................................. Section 3.3(a)
Transfer Reduction Level.................................... Section 2.1(e)
Transferring Party.......................................... Section 3.3
Trust Account Shares........................................ Section 1.1
Update Notice............................................... Section 2.1(f)
</TABLE>
SECTION 1.3 Other Definitional Provisions. (a) The words "hereof ",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any
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particular provision of this Agreement, and Article, Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
SECTION 1.4 Methodology for Calculations. For purposes of calculating the
number of outstanding Company Common Shares, Equity Securities or Voting
Securities and the number of Company Common Shares, Equity Securities or Voting
Securities Beneficially Owned by BNP and its Affiliates as of any date, any
Company Common Shares, Equity Securities or Voting Securities held in the
Company's treasury or belonging to any Subsidiaries of the Company which are not
entitled to be voted or counted for purposes of determining the presence of a
quorum pursuant to Section 160(c) of the Delaware General Corporation Law (or
any successor statute) shall be disregarded.
ARTICLE II
STANDSTILL
SECTION 2.1 Acquisition of Additional Voting Securities. (a) During the
Standstill Period, except as provided in paragraphs (b), (c), (d) and (e) below,
BNP covenants and agrees with the Company that it shall not, and shall cause
each of its Affiliates, directors and executive officers not to, directly or
indirectly, acquire, offer or propose to acquire or agree to acquire, whether by
purchase, tender or exchange offer, through the acquisition of control of
another Person (including by way of merger or consolidation), by joining a
partnership, syndicate or other Group or otherwise, the Beneficial Ownership of
any additional Voting Securities (except by way of stock dividends, stock
reclassifications or other distributions or offerings made available and, if
applicable, exercised on a pro rata basis, to holders of Company Common Shares
generally) (the "Acquisition Restrictions").
(b) The foregoing Acquisition Restrictions will not apply if either (i) a
third party who is not an Affiliate of BNP or any of its Affiliates (a "Third
Party", which term shall include any Group, other than a Group which includes
BNP or any of its Affiliates as a member) commences a bona fide tender or
exchange offer for more than 50% of the outstanding Company Common Shares and
the Board does not both (x) recommend against the tender or exchange offer
within ten Business Days after the commencement thereof (which, in the case of
an exchange offer, shall be deemed to be the effective date of the registration
statement relating to the securities offered in such exchange offer) or such
longer period as shall then be permitted under the Commission's rules and (y)
adopt a stockholders' rights plan (if the Company does not then have one in
effect) which does not contain an exception from the definition of "Acquiring
Person", "Triggering Event" or similar terms for such Third Party or its
Affiliates (it being understood that, notwithstanding the foregoing, the Board
shall not be required to adopt such a plan if such plan is opposed by any of the
Class A Directors), (ii) a Third Party acquires Beneficial Ownership of 25% of
the outstanding Company Common Shares (other than as a result of purchases of
such securities from the Company) and at such time, the Ownership Percentage is
equal to at least 25%, or (iii) a Third Party acquires Beneficial Ownership of
20% of the outstanding Company Common Shares (other than as a result of
purchases of such securities from the Company) and publicly discloses in a
filing on Schedule 13D or otherwise a possible intention to seek control of the
Company or to engage in a transaction that would result in a Change of Control
of the Company and at such time, the Ownership Percentage is equal to at least
20%; provided that if the Acquisition Restrictions terminate as a result of any
of (i), (ii) or (iii) above, BNP may only acquire shares of Company Common Stock
pursuant to (x) a tender or exchange offer for any and all outstanding shares of
Company Common Stock or (y) a Business Combination Proposal for the Company so
long as (A) such proposal is made in writing delivered only to the Executive
Committee and (B) BNP and its representatives keep confidential and refrain from
disclosing to any other Person the fact that they have made any such proposal or
any of the terms thereof. If (x) the foregoing tender or exchange offer referred
to in clause (i) shall have been terminated, (y) the Third Party referred to in
clauses (ii) or (iii) shall have reduced its Beneficial Ownership below 25% or
20%, respectively, of the outstanding Company Shares or (z) the Third Party
referred to in clause (iii) shall have publicly altered or modified its prior
public disclosure to provide that it intends to hold the shares
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acquired for investment purposes and not with the intention to seek control of
the Company or to engage in a transaction that would result in a Change of
Control of the Company, in each case without BNP having made a bona fide tender
or exchange offer or a bona fide Business Combination Proposal, then the
Acquisition Restrictions shall be reinstated at the Permitted Ownership
Percentage in effect prior to the termination of the Acquisition Restrictions.
The events described in clauses (i), (ii) and (iii) of this Section 2.1(b) and
in Section 2.1(c) are hereinafter referred to as the "Acquisition Restrictions
Termination Events".
(c) Notwithstanding any other provision hereof, BNP shall be entitled at
any time to acquire shares of Company Common Stock in excess of the
then-applicable Permitted Ownership Percentage if (i) BNP shall make a capital
infusion into the Company (A) in response to the requirements of applicable U.S.
bank regulatory authorities, as advised in writing to the Company by such
authority, or (B) because the Company shall cease to be a "well-capitalized"
bank holding company within the meaning of Section 225.2(r)(1) of Regulation Y
and is not restored to the status of a "well capitalized" bank holding company
within twelve months after the date on which it ceased to be a "well
capitalized" bank holding company; provided that nothing herein shall be deemed
to derogate the authority of the Board to approve the terms of any such capital
infusion, or (ii) the Company shall become subject to any regulatory capital
directive, or become an institution in "troubled" condition under 12 C.F.R.
ss.325.6 and Section 225.71(d) of Regulation Y, respectively, or under 12 C.F.R.
ss.263.81(c) or under any successor provisions. Any shares of Company Common
Stock acquired pursuant to this paragraph (c) shall not be subject to any of the
voting restrictions contained in Section 4.1(a)(ii) or 4.2. In the event that
BNP wishes to acquire additional shares of Company Common Stock following any
acquisition of shares pursuant to this paragraph (c), such acquisition may only
be effected through a Business Combination Proposal which provides for a price
per share of Company Common Stock so acquired that, in the written opinion of an
Independent Investment Banking Firm selected by the Board (by a majority vote of
the Directors constituting the entire Board), is fair from a financial point of
view to the holders of such Company Common Stock.
(d) If the Ownership Percentage declines due to an issuance or disposition
by the Company of Company Common Stock or other Equity Securities (whether in a
public offering, in connection with an acquisition, upon exercise of employee
stock options or otherwise), BNP and its Affiliates shall be permitted to
purchase a number of shares of Company Common Stock or other Equity Securities
in the open market or in privately-negotiated transactions so that the Ownership
Percentage following such purchase is no greater than the then-applicable
Permitted Ownership Percentage; provided that neither BNP nor any of its
Affiliates shall be permitted to purchase any shares pursuant to this Section
2.1(d) if the act of purchasing such shares would cause a transaction entered
into or proposed to be entered into by the Company to be disqualified as a
"pooling of interests" under applicable accounting rules, in which case such
purchase rights shall be deferred until such time as such purchases may be
effected without adversely affecting the pooling accounting treatment of such
transaction. The Company and BNP agree to confer and reasonably cooperate with
one another with respect to share repurchases or purchases to facilitate
satisfaction of such requirements of the applicable accounting rules with
respect to any such transaction.
(e) (i) In the event that the Ownership Percentage decreases by an
aggregate of less than 10% (the "Transfer Reduction Level") from the Ownership
Percentage on the same date of the prior year (the "Transfer Measurement Date")
as a result of a Transfer or a series of Transfers by BNP or its Affiliates of
any Company Common Shares or other Equity Securities (other than any Transfers
pursuant to clauses (iv), (v), (vi) or (vii) of Section 3.2(c)), BNP and its
Affiliates may purchase additional shares of Company Common Stock or other
Equity Securities in open market purchases or in privately-negotiated
transactions so long as, after giving effect to such acquisitions, the Ownership
Percentage does not exceed the Permitted Ownership Percentage on the Transfer
Measurement Date (as reduced in accordance with clause (ii) below subsequent to
such Transfer Measurement Date).
(ii) Upon any Transfer of any Company Common Shares or other Equity
Securities by BNP or any of its Affiliates pursuant to clauses (iv), (v), (vi)
or (vii) of Section 3.2(c) or to the extent of any other Transfers that result
in the Ownership Percentage decreasing below the Transfer Reduction Level, the
Permitted Ownership Percentage shall be automatically decreased to the actual
Ownership Percentage following such event. For purposes of this Section 2.1(e),
a Transfer pursuant to clause (vii) of Section 3.2(c) shall not be
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<PAGE> 11
deemed to have occurred so long as BNP continues to have sole power to vote or
direct the voting of such Company Common Shares or other Equity Securities which
have been so pledged.
(f) (i) Upon a repurchase or redemption of Equity Securities by the Company
that, by reducing the number of outstanding Equity Securities, increases the
Ownership Percentage (a "Company Repurchase") to an amount in excess of the
then-applicable Permitted Ownership Percentage, BNP shall dispose, or cause its
Affiliates to dispose, of Equity Securities Beneficially Owned by them as set
forth in clauses (ii) or (iii) below, as applicable; provided, however, that if
effecting such disposition at such time would subject BNP or any such Affiliate
to liability under Section 16(b) of the Exchange Act, then the obligation of BNP
to effect, or cause its Affiliates to effect, such disposition shall be deferred
until the earliest date on which it or its Affiliates may effect such
disposition without incurring such liability under Section 16(b).
(ii) In the event of a proposed Company Repurchase (other than pursuant to
a proposed program of open market repurchases by the Company, which shall be
treated in accordance with the provisions of clause (iii) below) which, together
with any prior Company Repurchases of less than 1% of the outstanding Equity
Securities with respect to which no Equity Securities Beneficially Owned by BNP
or its Affiliates were disposed of in the manner required by this Section
2.1(f), shall be in excess of 1% of the outstanding Equity Securities prior to
such Company Repurchase (a "Required Repurchase Event"), the Company shall give
written notice to BNP not later than five Business Days prior to the Company
Repurchase, specifying the number and type of Equity Securities to be
repurchased and the repurchase price (the "Repurchase Price") (if known) per
security. On the date of the Company Repurchase giving rise to such notice, BNP
shall sell or cause one or more of its Affiliates to sell to the Company (a "BNP
Repurchase") a sufficient number of Equity Securities of the type repurchased or
to be repurchased by the Company, or, if BNP and its Affiliates do not own such
type of Equity Securities, shares of Class A Common Stock or Company Common
Stock (the "Repurchase Number of Shares"), such that the Ownership Percentage
following such BNP Repurchase is equal to the Ownership Percentage prior to the
Company Repurchase or Company Repurchases giving rise to such Required
Repurchase Event, at a price, payable in cash, equal to the Repurchase Price;
provided that, at BNP's option and subject to applicable law, in lieu of selling
any Equity Securities to the Company, BNP may dispose or cause one or more of
its Affiliates to dispose of the Repurchase Number of Shares in open market
transactions of the type described in clauses (i) and (ii) of Section 3.2(c)
(the "Market Sale Option"). BNP shall give written notice to the Company not
later than two Business Days prior to the Company Repurchase of its election to
exercise its Market Sale Option and shall consummate the sale of such Equity
Securities as specified in such written notice within ten Business Days
thereafter (or such longer period as may be required to comply with any volume
restrictions on sales of securities under Rule 144 of the Securities Act (or any
successor rule) if BNP elects to dispose of such Equity Securities in
transactions of the type described in clause (ii) of Section 3.2(c)). BNP shall
not be deemed to be in violation of this Agreement to the extent that the
Permitted Ownership Percentage has been reduced as a result of a Company
Repurchase which has not resulted in a Required Repurchase Event pursuant to
this paragraph.
(iii) In the event that the Company shall propose to commence a program of
open market repurchases of Equity Securities which would constitute a Required
Repurchase Event, the Company shall give written notice thereof to BNP not later
than ten Business Days prior to the commencement of any repurchases of Equity
Securities pursuant thereto, and BNP shall have the option, exercisable by
written notice given to the Company within five Business Days after receipt of
such notice from the Company, to either (i) participate in such repurchases by
selling Equity Securities to the Company on a regular basis proportionate with
the Company's repurchase of Equity Securities in the open market (the
"Repurchase Option"), or (ii) sell the applicable number of Equity Securities
pursuant to the Market Sale Option. In either case the Company shall give
written notice to BNP (the "Update Notice") not less frequently than every
second week as to the number of Equity Securities so repurchased by the Company
during the two preceding calendar weeks, the weighted average price paid for
such repurchased Equity Securities (the "Average Price"), and the Repurchase
Number of Shares. If BNP has elected the Repurchase Option, BNP shall sell, or
cause one or more of its Affiliates to sell, to the Company the Repurchase
Number of Shares at the Average Price within five Business Days after receiving
the Update Notice. If BNP has not elected the Repurchase Option, it shall sell
the Repurchase Number of Shares pursuant to the Market Sale Option within ten
Business Days after
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<PAGE> 12
receiving the Update Notice (or such longer period as may be required to comply
with any volume restrictions on sales of securities under Rule 144 of the
Securities Act (or any successor rule) if BNP elects to dispose of such Equity
Securities in transactions of the type described in clause (ii) of Section
3.2(c)).
(g) Except as expressly provided herein, neither BNP nor any Affiliate
thereof shall permit any of their respective Subsidiaries (regardless of whether
such entity became a Subsidiary of BNP or such Affiliate after the date of this
Agreement) to Beneficially Own any Equity Securities. Notwithstanding the
foregoing, the acquisition (whether by merger, consolidation or otherwise) by
BNP or an Affiliate thereof of any entity that Beneficially Owns Equity
Securities, or the acquisition of Equity Securities in connection with securing
or collecting a debt previously contracted in good faith in the ordinary course
of BNP's or such Affiliate's banking business, shall not constitute a violation
of the Permitted Ownership Percentage in effect at the time of such acquisition;
provided that a significant purpose of any such transaction is not to avoid the
provisions of this Agreement; and provided further, that the provisions of
paragraph (h) below are complied with.
(h) If at any time BNP or any of its Affiliates become aware that BNP and
its Affiliates Beneficially Own in the aggregate more than the Permitted
Ownership Percentage (including by virtue of acquisitions referred to in
paragraph (g) above), then BNP shall, as soon as is reasonably practicable (but
in no manner that would require BNP or any such Affiliate to incur liability
under Section 16(b) of the Exchange Act) take all action necessary to reduce the
amount of Equity Securities Beneficially Owned by it and its Affiliates to an
amount not greater than the Permitted Ownership Percentage in effect at such
time. Notwithstanding any other provision of this Agreement, in no event may BNP
or any of its Affiliates exercise any voting rights in respect of any Equity
Securities Beneficially Owned by BNP and its Affiliates in excess of the
Permitted Ownership Percentage in effect at such time.
(i) Any shares of Company Common Stock acquired by BNP or any of its
Affiliates in accordance with the terms of paragraphs (b), (c), (d) and (e)
above shall be exchangeable by BNP, at its option, for shares of Class A Common
Stock. Except pursuant to this Section 2.1(i), the Company agrees that, after
the Closing, it shall not issue any additional shares of Class A Common Stock to
any Person (other than in exchange or substitution for shares of Class A Common
Stock already Beneficially Owned by such Person or in connection with a dividend
payable in shares of Class A Common Stock to holders of Class A Common Stock or
upon exercise of options, warrants or other securities previously distributed as
a dividend on the shares of Class A Common Stock which are exercisable for or
convertible into shares of Class A Common Stock). In order to effect any such
exchange, BNP shall surrender the certificate or certificates evidencing the
shares of Company Common Stock to be exchanged for Class A Common Stock to the
secretary of the Company. Such certificates shall be duly endorsed to the
Company or in blank, accompanied by proper instruments of transfer to the
Company or in blank. The Company shall, within five Business Days after the
surrender thereof, issue and deliver, or cause to be issued and delivered, to
BNP certificates representing that number of shares of Class A Common Stock
equal to the number of shares of Company Common Stock converted pursuant to the
terms of this Section 2.1(i). Subject to the Restated Charter and the By-Laws,
upon such surrender, the shares shall be deemed to be treated as shares of Class
A Common Stock for all purposes of this Agreement irrespective of any delay in
issuing such new share certificates. The Company agrees to use its reasonable
best efforts (including, without limitation, seeking to obtain from its
stockholders approval of an amendment to the Restated Charter to increase the
number of authorized shares of Class A Common Stock at the next scheduled
meeting of stockholders with respect to which a proxy statement has not
theretofore been mailed) to at all times keep reserved, out of its authorized
but unissued shares of Class A Common Stock, such number of shares of Class A
Common Stock as shall be sufficient to provide for the reasonably anticipated
exchange of its outstanding Common Stock into Class A Common Stock in accordance
with the terms of this Section 2.1(i).
(j) Any additional Equity Securities acquired by BNP or any of its
Affiliates or its or their directors or executive officers following the Closing
shall be subject to the restrictions contained in this Agreement as fully as if
such Equity Securities were acquired by BNP pursuant to the Merger, it being
understood that any Company Common Shares acquired by any Person who at the time
of such acquisition was an officer or director of the Company or any of its
Subsidiaries pursuant to options granted or any other issuances of shares
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of Company Common Stock under any Company benefit plan shall not be deemed to be
subject to this Agreement.
SECTION 2.2 Certain Restrictions. (a) During the Standstill Period, except
as provided below, BNP agrees not to, and to cause each of its Affiliates and
its and their respective directors and executive officers not to, directly or
indirectly, alone or in concert with others:
(i) initiate, propose or otherwise solicit securityholders of the
Company for the approval of one or more securityholder proposals or induce
or attempt to induce any other Person to initiate any securityholder
proposal, or seek election to or seek to place a representative or other
Affiliate or nominee on the Board (other than a Class A Nominee) or seek
removal of any member of the Board (other than a Class A Director);
(ii) (A) except in the manner and to the extent permitted under
Section 2.1(b), propose or seek to effect a merger, consolidation,
recapitalization, reorganization, sale, lease, exchange or other
disposition of substantially all assets or other business combination
involving, or a tender or exchange offer for securities of, the Company or
any of its Subsidiaries or any material portion of its or such Subsidiary's
business or assets or any other type of transaction that would otherwise
result in a Change of Control of the Company or in any increase in the
Ownership Percentage beyond the then existing Ownership Percentage (any
such action described in this clause (A), a "Company Transaction
Proposal"), (B) seek to exercise any control or influence over the
management of the Company or the Board or any of the businesses, operations
or policies of the Company (other than solely by virtue of representation
on the Board and participation in meetings and other actions of the Board
and any duly constituted committee thereof or by informal meetings or
consultations with members of the Board or management), (C) advise, assist
or encourage or finance (or assist or arrange financing to or for) any
other Person in connection with any of the matters restricted by, or to
otherwise seek to circumvent the limitations of, this Agreement, or (D)
present to the Company, its stockholders or any third party any proposal
constituting or that can reasonably be expected to result in a Company
Transaction Proposal or in an increase in the Ownership Percentage;
(iii) publicly suggest or announce its willingness or desire to engage
in a transaction or group of transactions or have another Person engage in
a transaction or group of transactions that constitute or could reasonably
be expected to result in a Company Transaction Proposal or in an increase
in the Ownership Percentage or take any action that might require the
Company to make a public announcement regarding any such Company
Transaction Proposal;
(iv) initiate, request, induce, encourage or attempt to induce or give
encouragement to any other Person to initiate, or otherwise provide
assistance to any Person who has made or is contemplating making, or enter
into discussions or negotiations with respect to, any proposal constituting
or that can reasonably be expected to result in a Company Transaction
Proposal or in an increase in the Ownership Percentage;
(v) solicit proxies (or written consents) or assist or participate in
any other way, directly or indirectly, in any solicitation of proxies (or
written consents), or otherwise become a "participant" in a "solicitation,"
or assist any "participant" in a "solicitation" (as such terms are defined
in Rule 14a-1 of Regulation 14A and Instruction 3 of Item 4 of Schedule
14A, respectively, under the Exchange Act) in opposition to the
recommendation or proposal of the Board, or recommend or request or induce
or attempt to induce any other Person to take any such actions, or seek to
advise, encourage or influence any other Person with respect to the voting
of (or the execution of a written consent in respect of) Voting Securities
or, except as otherwise expressly required, permitted or contemplated by
this Agreement or the Restated Charter, execute any written consent in lieu
of a meeting of the holders of Voting Securities or grant a proxy with
respect to the voting of Voting Securities to any Person other than an
officer or agent of BNP or the Company;
(vi) form, join in or in any other way (including by deposit of Equity
Securities) participate in a partnership, pooling agreement, syndicate,
voting trust or other Group with respect to Equity Securities,
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<PAGE> 14
or enter into any agreement or arrangement or otherwise act in concert with
any other Person, for the purpose of acquiring, holding, voting or
disposing of Equity Securities;
(vii) take any other actions, alone or in concert with any other
Person, to seek to effect a Change of Control of the Company or an increase
in the Ownership Percentage or otherwise seek to circumvent any of the
limitations set forth in this Section 2.2; or
(viii) request, or induce or encourage any other Person to request,
that the Company amend or waive any of the provisions of this Agreement.
(b) If any Acquisition Restrictions Termination Event occurs, the
restrictions set forth in paragraphs (i) through (viii) above will not apply to
the extent (but only to the extent) necessary to enable BNP to make the Business
Combination Proposal permitted to be made under Section 2.1(b) hereof and
subject to the terms and conditions relating thereto.
(c) Notwithstanding the foregoing restrictions, BNP may at any time submit
a Business Combination Proposal for the Company so long as (i) such Business
Combination Proposal is made in writing delivered only to the Executive
Committee in a manner which does not require public disclosure thereof by the
Company and (ii) BNP and its representatives keep confidential and refrain from
disclosing to any other Person the fact that they have made such a Business
Combination Proposal or any of the terms thereof, it being understood that the
Executive Committee shall be under no obligation to BNP or its Affiliates to
accept such Business Combination Proposal or to cause such Business Combination
Proposal to be submitted to the full Board for consideration. In addition, (x)
if it shall become part of the agenda of any meeting of the Board or any
committee thereof to review any proposal submitted by a Third Party with respect
to a Company Transaction Proposal which would result in a Change of Control of
the Company (other than as a result of action taken by BNP pursuant to Section
5.2), or (y) if the Board or any committee thereof shall determine to solicit
proposals for such a transaction from Third Parties, the Company shall give
prompt written notice of such determination to BNP and shall provide BNP with a
reasonable opportunity to, in the case of clause (x), participate as a potential
bidder prior to accepting such Third Party proposal or, in the case of clause
(y), participate in the solicitation process as a potential bidder. For purposes
of this Section 2.2(c), the reference to "Company Common Stock" in clause
(iii)(B) of the term "Change of Control" shall be deemed to be a reference to
"Company Common Shares".
SECTION 2.3 Notice of Certain Events; Press Releases, etc. (a) During the
Standstill Period, BNP will, subject to any requirements of applicable law or
regulation, inform the Chief Executive Officer of the Company orally within one
Business Day and as promptly as practicable in writing (but in no more than ten
Business Days) upon it or any of its Affiliates being contacted by any Person or
Group with respect to any of the matters covered by paragraphs (i) through
(viii) of Section 2.2(a) as to the content and nature of any such contact and
the identity of such Person or Group.
(b) Unless otherwise required by applicable law, BNP will not, and will not
permit any of its Affiliates to, issue any press release or make any public
announcement or other communication with respect to any of the matters described
in Sections 2.1(b) or 2.2(a) without the prior written consent of the Chief
Executive Officer of the Company or as authorized by a resolution adopted by a
majority of the Board.
SECTION 2.4 Post-Standstill Period. (a) Following the expiration of the
Standstill Period and during the remainder of the Term (such period, the
"Post-Standstill Period"), BNP covenants and agrees with the Company that:
(i) neither BNP nor any of its Affiliates will take any action
resulting in a majority of the Directors being BNP nominees or otherwise
not constituting Independent Directors (other than as a result of a
transaction permitted by clauses (ii) or (iii) below);
(ii) neither BNP nor any of its Affiliates will acquire Beneficial
Ownership of Equity Securities such that following such acquisition, the
Ownership Percentage would be greater than the Permitted Ownership
Percentage that was in effect on the date on which the Standstill Period
expired, except in transactions effected pursuant to the procedures
described in paragraph (b) below; and
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(iii) neither BNP nor any of its Affiliates will take any other action
that could result in an increase in the Ownership Percentage or other
material transactions between the Company and BNP or its Affiliates except
in transactions effected pursuant to the procedures described in paragraph
(b) below.
(b) During the Post-Standstill Period, BNP may submit a Business
Combination Proposal to the Executive Committee on a confidential basis,
whereupon (if BNP has notified the Company that it is submitting such Business
Combination Proposal pursuant to this Section 2.4(b) and not pursuant to the
first sentence of Section 2.2(c)) the Executive Committee shall promptly (but no
later than 10 days after the submission of such proposal) retain an Independent
Investment Banking Firm and outside legal counsel to assist the Executive
Committee in its review of the proposal and shall follow the procedures
hereinafter set forth. The fees and expenses of such financial and legal
advisors shall be borne by the Company. If the Independent Investment Banking
Firm is unable to conclude within a reasonable period of time (not exceeding 60
days) following submission of such Business Combination Proposal to the
Executive Committee that such Business Combination Proposal is fair from a
financial point of view to the stockholders of the Company (other than BNP and
its Affiliates), or concludes that it is inadequate, then BNP shall withdraw
such Business Combination Proposal and shall not submit another Business
Combination Proposal to the Company pursuant to this Section 2.4(b) for a period
of twelve months from the date on which such Independent Investment Banking Firm
reaches such conclusion. If the Independent Investment Banking Firm concludes
that the Business Combination Proposal is fair and adequate, then the Executive
Committee shall cause the proposal to be submitted to the full Board for
consideration. If a majority of the Independent Directors on the Board shall
conclude, after considering the advice of such financial and legal advisors as
such Independent Directors consider relevant and material in the circumstances,
that the transaction contemplated by such Business Combination Proposal is not
in the best interests of all of the Company's stockholders at that time, then
BNP shall withdraw such Business Combination Proposal and shall not submit
another Business Combination Proposal to the Company pursuant to this Section
2.4(b) for a period of twelve months from the date on which the Independent
Directors make such conclusion. Approval of such Business Combination Proposal
by the Board shall require the affirmative vote of a majority of the Independent
Directors then on the Board (in addition to any other vote required by
applicable law) and may be subject to any "market check" procedures for a
reasonable period of time (not exceeding 90 days) (the "Market Check Period") as
the Board (including a majority of the Independent Directors of the Board) may
determine to be appropriate in the circumstances. If within the Market Check
Period the Company receives from a Third Party a superior proposal (a "Superior
Proposal") to the Business Combination Proposal submitted by BNP (as determined
in good faith by the Board (including a majority vote of the Independent
Directors)), the Company shall offer BNP a reasonable period after delivery to
BNP of notice of such Superior Proposal (but no more than five Business Days) to
revise its Business Combination Proposal so that the terms thereof, as so
revised, are superior to the Superior Proposal (as determined in good faith by
the Board (including a majority vote of the Independent Directors)). If BNP does
not submit, within such five Business Day period, a revised proposal which is
determined in accordance with the preceding sentence to be superior to the
Superior Proposal, the Board may cause the Company to enter into an agreement
for such Superior Proposal and recommend acceptance thereof to the stockholders
of the Company. In such event, BNP agrees that it shall, and shall cause each of
its Affiliates to, in connection with any vote or action by written consent of
the stockholders of the Company with respect to such agreement, vote or cause to
be voted (or execute or cause to be executed a written consent in respect of)
all Voting Securities, if any, Beneficially Owned by BNP and its Affiliates in
favor of the Superior Proposal (or, if such Superior Proposal is a tender or
exchange offer, tender and cause each of its Affiliates to tender, its Equity
Securities) unless the Board withdraws its recommendation of such Superior
Proposal prior to the date on which such vote is held or such action by written
consent becomes effective or the consummation of such tender or exchange offer
occurs, as the case may be. If the Company shall not have received a Superior
Proposal during the Market Check Period, then the Company and BNP may enter into
a definitive agreement (containing customary terms and conditions, including
customary "fiduciary out" provisions) to consummate BNP's Business Combination
Proposal (it being understood that, following the execution of a definitive
agreement with the Company, BNP need not vote its shares in favor of any
alternative proposal or tender its shares in any alternative tender or exchange
offer which is thereafter entered into by the Company or made by any Third
Party); provided that the Board has received a
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<PAGE> 16
reaffirmation as of such date of the fairness opinion described above in form
and substance reasonably and in good faith satisfactory to a majority of the
Independent Directors. If the Independent Investment Banking Firm shall be
unable to reaffirm such fairness opinion, the Company shall give notice thereof
to BNP which shall have 15 days to improve its proposal so that such opinion may
be reaffirmed and if, after submission of an improved proposal, if any, such
opinion is still not reaffirmed, then the proposed transaction shall terminate
and BNP may not submit another such proposal under this Section 2.4(b) for 12
months following the date such proposal is first submitted by the Executive
Committee to the Board for consideration.
(c) During the Post-Standstill Period, BNP may contact or respond to
contacts from other stockholders of the Company regarding the business and
affairs of the Company on a confidential basis, but, for the first four years of
such Post-Standstill Period, BNP may not, and may not permit any of its
Affiliates to, either directly or through others (i) solicit, finance or become
a participant in a solicitation (as such terms are defined in Rule 14a-1 of Rule
14A and Instruction 3 of Item 4 of Schedule 14A, respectively, under the
Exchange Act) of proxies or written consents, (A) for the election of Non-Class
A Directors of the Company, (B) for any stockholder proposal opposed by the
Board or (C) against any proposal submitted to the stockholders and recommended
by the Board, (ii) make or submit any proposal to the Company's stockholders
opposed by the Board, (iii) make any public statement as to any intention or
plan to take actions not consistent with the then-applicable terms of this
Agreement (including, without limitation, Section 2.4(b)), (iv) publicly
announce (except as otherwise legally required) any intention to dispose of some
or all of its Equity Securities or acquire additional Equity Securities, (v)
form or join a Group with the objective or effect of effecting a Change of
Control of the Company, (vi) take any action inconsistent with the procedures
described in paragraph (b) above or (vii) publicly request or encourage others
to request that the Company waive any of the then-applicable provisions or
limitations contained in this Agreement.
ARTICLE III
TRANSFER RESTRICTIONS
SECTION 3.1 General Transfer Restrictions. The right of BNP and its
Affiliates to Transfer any Equity Securities is subject to the restrictions set
forth in this Article III, and no Transfer of Equity Securities by BNP or any of
its Affiliates may be effected except in compliance with this Article III. Any
attempted Transfer in violation of this Agreement shall be of no effect and null
and void, regardless of whether the purported transferee has any actual or
constructive knowledge of the Transfer restrictions set forth in this Agreement,
and shall not be recorded on the stock transfer books of the Company.
SECTION 3.2 Restrictions on Transfer. (a) Without the prior written
consent of the Company, except as provided in paragraph (d) below, during an
initial period of eighteen months following the Closing, BNP shall not, and
shall cause its respective Affiliates not to, Transfer any Equity Securities;
provided, that the foregoing restriction shall not prohibit BNP or any of its
Affiliates from Transferring any Equity Securities (x) to the Company (or its
designee) pursuant to Section 2.1(f), (y) in the manner provided in clause (i)
or (ii) of paragraph (c) below to the extent such Transfer is required pursuant
to Section 2.1(f) or 2.1(h) or the second proviso to the definition of
"Ownership Percentage" or (z) as provided in clause (iii) of paragraph (c)
below.
(b) For the period between eighteen months and two years following the
Closing, the restrictions set forth in paragraph (a) above shall continue to
apply to Transfers of Equity Securities by BNP or its Affiliates except that BNP
and its Affiliates may also effect Transfers of Equity Securities as provided in
clause (ii) of paragraph (c) below.
(c) Following the second anniversary of the Closing, except as provided in
paragraph (d) below, BNP shall not, and shall cause its Affiliates not to,
Transfer any Equity Securities; provided that the foregoing restriction shall
not be applicable to Transfers (i) of Company Common Shares in a
Commission-registered underwritten offering in which no Transfer of a number of
shares of Company Common Stock representing more than 2% of the outstanding
Company Common Shares is made to any Person or Group, (ii) pursuant to the
restrictions of Rule 144 under the Securities Act applicable to sales of
securities by Affiliates of an issuer
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(regardless of whether BNP or its Affiliates is deemed at such time to be an
Affiliate of the Company), (iii) to an Affiliate of BNP which agrees in writing
with the Company to be bound by this Agreement as fully as if it or they were an
initial signatory hereto, (iv) pursuant to a tender or exchange offer by a Third
Party that is not rejected by the Board within the time period prescribed by the
Exchange Act and the rules and regulations promulgated by the Commission
thereunder, (v) of no more than 4.9% of the outstanding Company Common Shares to
any one institutional investor which (A) purchases such shares in the normal
course of its investment business, for investment purposes only, and with no
intention of influencing control of the Company and which purchases such shares
pursuant to an exemption from the registration requirements of the Securities
Act, and (B) provides appropriate certification to the Company as to the
foregoing matters; provided that neither BNP nor any of its Affiliates may
exercise its right to Transfer shares as described in this clause (v) on more
than one occasion in any 12-month period, (vi) of any number of shares to any
one or more institutional investors (but not more than 20% of the
then-outstanding Company Common Shares to any one bank holding company, as such
term is defined Section 2(c)(1) of Regulation Y, or foreign bank or foreign
banking organization, as such terms are defined in Sections 211.21(m) and (n) of
Regulation K under the International Banking Act of 1978, as amended) who are
reasonably acceptable to the Board (such approval not to be unreasonably
withheld or delayed) and who agree in writing with the Company to be bound by
the then-applicable provisions of this Agreement as fully as if it or they were
an initial signatory hereto (a "Qualified Transferee"), or (vii) pursuant to a
bona fide pledge to secure money borrowed by BNP or any Affiliate, entered into
in good faith and not for purposes of avoiding the restrictions set forth in
this Agreement; provided (x) that such pledge is made to a Person who is a
Qualified Transferee pursuant to clause (vi) above (a "Qualified Pledgee"), (y)
the number of Equity Securities pledged complies with the limitations as to
amount set forth in clause (vi) above and (z) at the time such pledge is made,
such Qualified Pledgee agrees in writing to be bound by the then-applicable
provisions of this Agreement as fully as if it was an initial signatory hereto;
subject, in the case of Transfers pursuant to clauses (i), (v) and (vi), to the
Company's right of first refusal described in Section 3.3. In the case of any
Transfer to an Affiliate of BNP in accordance with clause (iii), BNP shall (a)
be liable for the performance by such Affiliate of its obligations under this
Agreement, and (b) act, and cause such Affiliate to agree that BNP shall act, as
agent for such Affiliate in connection with the receipt or giving of any and all
notices or approvals under this Agreement. Any Affiliate or Qualified Transferee
to whom BNP Transfers Equity Securities pursuant to clauses (iii) or (vi) of
this Section, respectively, shall be referred to herein as a "Permitted
Transferee".
(d) If at any time a court of competent jurisdiction or an applicable
regulatory agency or authority orders BNP or its Affiliates to dispose of any
and all of the Equity Securities Beneficially Owned by them, then BNP or such
Affiliate may dispose of such Equity Securities in transactions described in
clauses (i) through (vi) of paragraph (c) above, in each case only to the extent
necessary to comply with such order, subject, in each case, to the extent
provided in Section 3.3, to a right of first refusal by the Company as set forth
in such Section 3.3.
SECTION 3.3 Right of First Refusal. Prior to making any offer to Transfer
any Equity Securities pursuant to clauses (i), (v) or (vi) of Section 3.2(c),
BNP and/or its Affiliates proposing to effect such Transfer (collectively, the
"Transferring Party") shall give the Company the opportunity to purchase such
Equity Securities in the following manner:
(a) The Transferring Party shall give written notice (the "Transfer
Notice") to the Company, specifying (i) the Person to whom the Transferring
Party proposes to make such Transfer (in the case of clauses (v) or (vi) of
Section 3.2(c)) and the proposed manner of Transfer, (ii) the number or
amount and description of the Equity Securities to be Transferred, (iii)
except in the case of a public offering, the Offer Price (as defined
below), and (iv) all other material financial and economic terms and
conditions of the proposed Transfer, including a description of any
non-cash consideration sufficiently detailed to permit valuation thereof.
The Transfer Notice shall constitute an offer to the Company (or its
designee, as provided below) which is irrevocable during the period
described in paragraph (c) below, to sell to the Company (or any permitted
designee) the Equity Securities which are the subject of such Transfer
Notice upon the terms set forth in this Section 3.3 and the Transfer
Notice. The Company may elect to purchase (or cause its permitted designee
to purchase) all (but not less than all) the Equity Securities
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<PAGE> 18
that are the subject of the Transfer Notice for cash at the Offer Price
(or, if the Offer Price includes property other than cash, the equivalent
in cash of such property as determined in accordance with Section 3.3(d))
and upon the other financial and economic terms and conditions specified in
the Transfer Notice.
(b) For purposes of this Section 3.3, "Offer Price" shall be defined
to mean on a per share basis, or in the case of Equity Securities other
than Company Common Shares, a per unit basis, (i) in the case of a public
offering, the Current Market Value per Equity Security as of the date the
election notice of the Company hereinafter described is delivered, and (ii)
in the case of a privately-negotiated transaction, the proposed sale price
per Equity Security.
(c) If the Company elects to purchase the offered Equity Securities,
it shall give notice to the Transferring Party within 15 Business Days of
its receipt of the Transfer Notice of its election, which notice shall
include the date set for the closing of such purchase, which date shall be
no later than five Business Days following the delivery of such election
notice, or, if later, five Business Days after receipt of all required
regulatory approvals. In the event that the number of Equity Securities
purchased by the Company in connection with its exercise of its rights
pursuant to this Section 3.3 in any twelve-month period would exceed 4.9%
of the total number of outstanding Company Common Shares at the date of the
Transfer Notice (or, if more than one Transfer Notice has been given, the
date of the last of such Transfer Notices), the Company may, at its option,
designate any Person to purchase the Equity Securities subject to such
Transfer Notice; provided that if the closing of the purchase of the Equity
Securities by any such designee is delayed by reason of the need by such
designee to obtain required regulatory approvals beyond the date on which
the Company could have consummated such purchase pursuant to the first
sentence of this Section 3.3(c), the purchase price for such Equity
Securities shall also include interest on the Offer Price for the Equity
Securities subject to the Transfer Notice at the Prime Rate from the date
on which the Company would have been legally permitted to consummate such
purchase to but excluding the date that the designee actually purchases the
shares.
(d) If (i) the consideration specified in the Transfer Notice consists
of, or includes, consideration other than cash or a publicly traded
security, or (ii) any property other than Company Common Stock is proposed
to be transferred in connection with the transaction to which the Transfer
Notice relates, then the price payable by the Company under this Section
3.3 for the Equity Securities being transferred shall be equal to the Fair
Market Value of such consideration which shall be determined in the manner
set forth in Section 3.3(f). Notwithstanding anything to the contrary
contained in this Section 3.3, the time periods applicable to an election
by the Company to purchase the offered securities set forth in Section
3.3(a) shall not be deemed to commence until the Fair Market Value has been
determined. The Company and BNP shall cooperate and use their respective
best efforts to cause the Fair Market Value to be determined as promptly as
practicable but in no event later than 10 Business Days after the receipt
by the Company of the Transfer Notice.
(e) If the Company does not respond to the Transfer Notice within the
required response time period or elects not to purchase the offered Equity
Securities, the Transferring Party shall be free to complete the proposed
Transfer (to the same proposed transferee, in the case of a
privately-negotiated transaction) on terms no less favorable to the
Transferring Party than those set forth in the Transfer Notice, provided
that (x) such Transfer is closed within (i) 90 days after the latest of (A)
the expiration of the foregoing required response time periods, (B) the
receipt by BNP of the foregoing election notice by the Company or (C) the
receipt of all regulatory approvals and consents, and the expiration or
termination of all waiting periods in respect thereof, necessary to
consummate such proposed Transfer or (ii) in the case of a public offering,
within 20 days of the declaration by the Commission of the effectiveness of
a registration statement filed with the Commission pursuant to the
Registration Rights Agreement, and (y) the price at which the Equity
Securities are transferred must be equal to or higher than the Offer Price
(except in the case of a public offering, in which case the price at which
the Equity Securities are sold (before deducting underwriting discounts and
commissions) shall be equal to at least 90% of the Offer Price). Any Equity
Securities which continue to be held by the Transferring Party following
such period shall again be subject to the provisions of this Section 3.3.
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<PAGE> 19
(f) In the event that a determination of Fair Market Value must be
made pursuant to Section 3.3(d), the Company and BNP shall select a
mutually acceptable Independent Investment Banking Firm which shall
promptly make a determination (an "Appraisal") of the Fair Market Value of
the applicable consideration or the property proposed to be transferred.
Such Independent Investment Banking Firm's determination of the Fair Market
Value shall be conclusive and binding absent manifest error. The fees and
expenses of such Independent Investment Banking Firm shall be borne by the
Company.
SECTION 3.4 Transferees. Any Permitted Transferee shall be subject to the
then-applicable obligations of BNP under this Agreement as if such Permitted
Transferee were BNP; provided that in the case of a Transfer by BNP or one or
more of its Affiliates of less than all of the Equity Securities Beneficially
Owned by BNP and its Affiliates to a Qualified Transferee or Qualified Pledgee,
the Permitted Ownership Percentage applicable to each such Qualified Transferee
and its Affiliates and each such Qualified Pledgee and its Affiliates shall be
equal to the Ownership Percentage of such Qualified Transferee and its
Affiliates or such Qualified Pledgee and its Affiliates, respectively,
immediately following such Transfer, subject to adjustment as provided herein.
Prior to the initial acquisition of Beneficial Ownership of any Equity
Securities by any Permitted Transferee, and as a condition thereto, BNP agrees
to cause such Permitted Transferee to agree in writing with the Company to be
bound by the terms and conditions of this Agreement to the extent described in
Section 3.2(c) and this Section 3.4. Except as otherwise contemplated by this
Agreement BNP agrees not to cause or permit any Permitted Transferees who are
Affiliates of BNP to cease to qualify as an Affiliate of BNP so long as such
Permitted Transferees Beneficially Own any Company Common Shares, and if any
such Permitted Transferee shall cease to be so qualified, such Permitted
Transferee shall automatically upon the occurrence of such event cease to be a
"Permitted Transferee" for any purpose under this Agreement, and BNP shall
immediately cause all Company Common Shares Beneficially Owned by such entity to
be Transferred to BNP or another Permitted Transferee.
ARTICLE IV
VOTING
SECTION 4.1 Voting on Certain Matters. (a)(i) Each Class A Holder may vote
its shares of Class A Common Stock in its sole discretion with respect to Class
A Nominees for election as Class A Directors.
(ii) Unless an Acquisition Restrictions Termination Event shall have
occurred and the Acquisition Restrictions have not been reinstated pursuant to
the terms of this Agreement (but only until such time, if any, as the
Acquisition Restrictions shall have been reinstated), BNP shall, and shall cause
each of its Affiliates who Beneficially Owns Voting Securities to, at any annual
or special meeting of securityholders at which members of the Board are to be
elected or in connection with a solicitation of consents through which members
of the Board are to be elected, vote or cause to be voted (or act by written
consent with respect to) all Voting Securities (other than shares of Class A
Common Stock), if any, Beneficially Owned by it in the same proportion as the
stockholders of the Company other than BNP and its Affiliates vote.
(b) BNP may, and may cause each of its Affiliates to, in connection with
any vote or action by written consent of the stockholders of the Company (other
than with respect to any vote or action by written consent described in
paragraph (a)(ii) of this Section 4.1 or in Section 2.4(b) with respect to a
Superior Proposal, in which event such Voting Securities shall be voted or
caused to be voted as provided therein), vote or cause to be voted all Voting
Securities Beneficially Owned by it, as it shall elect in its sole discretion.
SECTION 4.2 Irrevocable Proxy. (a) Unless an Acquisition Restrictions
Termination Event shall have occurred and the Acquisition Restrictions have not
been reinstated pursuant to the terms of this Agreement (but only until such
time, if any, as the Acquisition Restrictions shall have been reinstated), at
least ten Business Days prior to any meeting of stockholders, BNP shall, and
shall cause each of its Affiliates who own Voting Securities to, deliver a duly
executed irrevocable proxy to the Company specifying how BNP or such Affiliate
shall vote such Voting Securities (to the extent such Voting Securities are
entitled to vote thereon) as to the election or removal of Non-Class A Directors
or a Superior Proposal described in Section 2.4(b) if such
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matters are scheduled to be brought before the meeting (which shall be in
accordance with Section 4.1(a)(ii) or Section 2.4(b), as applicable). Such proxy
shall appoint such officers of the Company as the Board shall designate as BNP's
or such Affiliates' (as the case may be) true and lawful proxies and
attorneys-in-fact as to the matters to be voted at the meeting and shall state
that it is irrevocable.
(b) Unless an Acquisition Restrictions Termination Event shall have
occurred and the Acquisition Restrictions have not been reinstated pursuant to
the terms of this Agreement (but only until such time, if any, as the
Acquisition Restrictions shall have been reinstated), in connection with any
proposed action by written consent of the stockholders relating to the election
or removal of Non-Class A Directors or the approval of a Superior Proposal
described in Section 2.4(b), BNP shall, and shall cause each of its Affiliates
who own any Voting Securities to, execute and deliver its written consent to the
Company with respect to any Voting Securities Beneficially Owned by BNP or its
Affiliates (to the extent such Voting Securities are entitled to execute a
written consent with respect to such matters). Any written consent delivered by
BNP or any of its Affiliates shall be made in accordance with Section 4.1(a)(ii)
or Section 2.4(b), as applicable.
SECTION 4.3 Quorum. BNP shall, and shall cause each of its Affiliates who
hold Voting Securities to, be present in person or represented by proxy at all
meetings of securityholders of the Company to the extent necessary so that all
Voting Securities Beneficially Owned by BNP and its Affiliates shall be counted
as present for the purpose of determining the presence of a quorum at such
meetings.
ARTICLE V
CORPORATE GOVERNANCE
SECTION 5.1 Composition of the Board. (a) Effective as of the Closing, the
Board shall initially be comprised of 20 directors of whom nine Directors shall
be Class A Directors nominated and elected solely by the Class A Holders. Such
initial nine Class A Directors shall be apportioned equally among the three
classes of Directors of the Company as determined by the Class A Holders. Prior
to the Closing, the Board shall take such action as is required under applicable
law (including increasing the size of the Board if necessary) to cause to be
elected to the Board, effective upon the Closing, the initial Class A Nominees.
Following the Closing, the size of the Board may be increased or decreased as
permitted by the By-Laws and Restated Charter of the Company as in effect from
time to time.
(b) At least 30 days prior to its distribution of its proxy statement or
information statement with respect to each meeting of stockholders at which
Directors are to be elected, the Company shall notify the Class A Holders as to
the number of Class A Nominees that the Class A Holders are entitled to
designate (calculated based on the estimated Ownership Percentage as of the
anticipated record date). BNP, on behalf of the Class A Holders, shall notify
the Company of the identity of the Class A Nominees designated pursuant to this
Section and shall provide to the Company any information regarding such Class A
Nominees required by the Exchange Act and the rules and regulations promulgated
by the Commission thereunder to be set forth in such proxy statement or
information statement (the "Proxy Information") on or prior to the close of
business on the later of (x) the 15th day following its receipt of the Company's
notice and (y) the 30th day prior to the Company's anticipated distribution of
such proxy statement or information statement. Promptly following the record
date, the Company shall advise the Class A Holders of the actual Ownership
Percentage as of the record date and shall provide the Class A Holders with a
reasonable opportunity to withdraw the name or names of previously submitted
Class A Nominees (in the event that such holders are entitled to elect fewer
directors than previously estimated) or supplement the list of Class A Nominees
(in the event that such holders are entitled to nominate more Class A Nominees
than previously estimated). The Proxy Information, on the date the proxy
statement is first mailed to the Company's stockholders and on the date of the
related stockholders meeting, shall not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
(c) The Company shall provide notice of any meeting of the Board of
Directors for which advance notice is required to be given under the By-Laws in
the manner and at the times required by such By-Laws. In order
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to assure timely receipt of any such notice, (i) BNP shall provide to the
Company, or shall cause each Class A Director to provide to the Company (A) a
fax number to which such notices may be sent by fax, or an e-mail address to
which such notices may be sent by electronic e-mail and (B) an address to which
notices may be sent by mail or recognized courier service, and (ii) the Company
shall provide any notice to each Class A Director of a Board meeting required by
the preceding sentence (A) by fax or e-mail (as specified by such Director) not
later than the date on which such notice is first required to be sent or given,
and (B) by mail or recognized courier service, sent on such date, in each case
in accordance with the delivery instructions provided by BNP or such Director
from time to time in accordance with clause (i) or if no such instructions are
provided, to such Class A Director in care of BNP at its principal executive
offices. Each Class A Director shall be responsible for providing the Company
with the information specified in clause (i) of the preceding sentence and any
changes to such information that may be applicable from time to time.
(d) No Person who is not an officer of BNP or any of its Affiliates shall
be a Class A Nominee and no Person who is not an officer of BNP or any of its
Affiliates shall be permitted to fill any vacancy created with respect to any
Class A directorship unless, in either case, such Person shall be reasonably
satisfactory to the Board (as evidenced by a resolution duly adopted by the
Directors constituting a majority of the entire Board prior to the time such
Person becomes a Class A Nominee).
SECTION 5.2 Agenda. If BNP wishes to include a matter on the agenda for
any meeting of the Board, BNP shall communicate such matter to the Chief
Operating Officer of the Company who may communicate such matter to the Chief
Executive Officer of the Company for consideration. The Chief Executive Officer
shall place such matters on the agenda as soon as reasonably practicable, in his
judgment, subject to the terms hereof.
SECTION 5.3 Committees. So long as the Ownership Percentage is at least
20%, the Company shall cause each committee of the Board to, subject to any
requirements under the Exchange Act or applicable securities exchange or market,
include at the request of BNP a number of Class A Directors proportionate to the
Ownership Percentage; provided that in no event shall BNP be entitled to
designate a majority of the members of any such committee. Subject to the
foregoing, the Board shall have the power at any time to fill vacancies in, to
change the membership of or to discharge any committee. BNP and the Company
agree that it is their understanding and intention that the provisions of
Section 4.1 of the By-Laws or paragraph (b) of Article Sixth of the Restated
Charter shall not be construed to limit the rights of BNP under this Section
5.3.
SECTION 5.4 Certain Officers. (a) Upon the Closing, the present Chief
Executive Officer of the Company shall remain the Chief Executive Officer of the
Company and First Hawaiian Bank and the CEO of Bank of the West shall become the
Chief Operating Officer of the Company and remain the Chief Executive Officer of
Bank of the West. Each of these officers shall continue to serve in those
respective capacities unless removed by a vote of two-thirds of the Board or
until their death, voluntary retirement or resignation. Each party hereto agrees
not to take, and to cause its Affiliates and, in the case of BNP, to use its
reasonable best efforts to cause any Class A Directors nominated by it not to
take, any action inconsistent with the foregoing sentence. Upon a vacancy
occurring in either of those positions for any reason, a nominating committee of
the Board shall be formed consisting of two Class A Directors (selected by the
Class A Directors) and two Independent Directors (selected by the Non-Class A
Directors). Such nominating committee shall nominate an individual to fill the
vacancy and will submit the nomination to the full Board for approval by a
two-thirds vote. If the initial four director nominating committee cannot agree
on a nomination, the members of the committee will jointly select a fifth
director, who must be a Non-Class A Director, to resolve the disagreement by a
majority vote of such nominating committee and will submit the nomination to the
full Board for a vote in accordance with the terms of the By-Laws.
(b) BNP shall have the right to designate a deputy chief auditor of the
Company and any successor thereto from time to time, provided that such
individual (i) is or thereupon becomes an employee of the Company or First
Hawaiian Bank, and (ii) is reasonably acceptable to both the Chief Executive
Officer and the Chief Operating Officer of the Company.
SECTION 5.5 Regulatory Cooperation. The Company and BNP agree to
cooperate, and BNP agrees to cause its Affiliates to reasonably cooperate, with
each other to prepare and file on a timely basis all
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necessary notices, applications for approvals and consents and other documents
and information with all applicable regulatory authorities that may be necessary
in connection with any acquisitions or divestitures of any companies,
businesses, branches or assets, or for the commencement of any de novo
activities, by the Company or any of its Subsidiaries as may from time to time
in the future be approved or authorized by the Board. The Company agrees to
reimburse BNP for all actual, documented and reasonable out-of-pocket expenses
incurred by BNP in connection with making or processing any such filing.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Conflicting Agreements. Each party represents and warrants
that it has not granted and is not a party to any proxy, voting trust or other
agreement that is inconsistent with or conflicts with any provision of this
Agreement.
SECTION 6.2 Duration of Agreement. Except as otherwise provided in this
Agreement, the rights and obligations of BNP and its Affiliates under this
Agreement shall terminate at such time as (i) the Ownership Percentage is less
than 10% or (ii) (A) upon the consummation of a transaction provided for in a
Business Combination Proposal made pursuant to Section 2.4(b) or pursuant to any
other section hereof in accordance with the procedures set forth in Section
2.4(b) or (B) upon consummation of any other tender or exchange offer set forth
in a Business Combination Proposal in which at least 90% of the outstanding
Company Common Shares (other than Company Common Shares Beneficially Owned by
BNP and its Affiliates) are acquired by BNP and its Affiliates (the "Term").
SECTION 6.3 Ownership Information. (a) For purposes of this Agreement,
BNP, in determining the amount of outstanding Equity Securities, may rely upon
information set forth in the most recent quarterly or annual report, and any
current report subsequent thereto, filed by the Company with the Commission,
unless the Company shall have updated such information by delivery of notice to
BNP.
(b) BNP shall deliver to the Company, promptly (but in no event more than
two Business Days) after any Transfer of Equity Securities, an accurate written
report specifying the amount and class of Equity Securities Transferred in such
transaction and the amount of each class of Equity Securities owned by BNP and
its Affiliates after giving effect to such transaction; provided, however, that
no such report need be delivered with respect to any Transfer of Equity
Securities by BNP and its Affiliates that is reported in a statement on Schedule
13D filed with the Commission and delivered to the Company by BNP in accordance
with Section 13(d) of the Exchange Act. In addition, upon the reasonable request
of the Company, BNP shall deliver to the Company a written notice specifying the
amount of Equity Securities then Beneficially Owned by BNP and its Affiliates.
The Company shall be entitled to rely on the most recently delivered report,
statement on Schedule 13D or notice for all purposes of this Agreement, unless
BNP shall have updated such information by delivery of a subsequent report,
statement on Schedule 13D or notice.
SECTION 6.4 Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the request
of any other party, to execute and deliver any further instruments or documents
and to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
SECTION 6.5 Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement, and no
giving of any consent provided for hereunder, shall be effective against the
Company or BNP unless such modification, amendment, waiver or consent is
approved by a majority of the Directors then in office, a majority of the
Independent Directors then in office and a majority of the Class A Directors
then in office. The failure of any party to enforce any of the provisions of
this Agreement shall in no way be construed as a waiver of such provisions and
shall not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
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SECTION 6.6 Severability. If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
SECTION 6.7 Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement and the Merger Agreement, together with the several
agreements and other documents and instruments referred to therein or annexed
thereto, embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, that may have related to the subject matter hereof in any way.
Without limiting the generality of the foregoing, to the extent that any of the
terms hereof are inconsistent with the rights or obligations of BNP under any
other agreement with the Company, the terms of this Agreement shall govern.
SECTION 6.8 Successors and Assigns. Neither this Agreement nor any of the
rights or obligations of any party under this Agreement shall be assigned, in
whole or in part (except by operation of law pursuant to a merger whose purpose
is not to avoid the provisions of this Agreement), by any party without the
prior written consent of the other parties hereto except as and to the extent
expressly provided for in Article III. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.
SECTION 6.9 Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
SECTION 6.10 Remedies. (a) Each party hereto acknowledges that money
damages would not be an adequate remedy in the event that each and every one of
the covenants or agreements in this Agreement are not performed in accordance
with their terms, and it is therefore agreed that, in addition to and without
limiting any other remedy or right it may have, the non-breaching party will
have the right to an injunction, temporary restraining order or other equitable
relief in any court of competent jurisdiction enjoining any such breach and
enforcing specifically each and every one of the terms and provisions hereof.
Each party hereto agrees not to oppose the granting of such relief in the event
a court determines that such a breach has occurred, and to waive any requirement
for the securing or posting of any bond in connection with such remedy.
(b) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
SECTION 6.11 Notices. Any notice, request, claim, demand or other
communication under this Agreement (each a "Notice") shall be in writing, shall
be either personally delivered, sent by reputable overnight courier service
(charges prepaid), sent by facsimile to the address for such Person set forth
below or such other address as the recipient party has specified by prior
written notice to the other parties hereto and shall be deemed to have been
given hereunder on (i) the date of delivery if sent by messenger, (ii) on the
Business Day following the Business Day on which delivered to a recognized
courier service if sent by overnight courier or (iii) upon confirmation of
receipt, if sent by fax.
If to the Company:
First Hawaiian, Inc.
999 Bishop Street
Honolulu, Hawaii 96813
Attention: Howard H. Karr
Telephone: (808) 525-8800
Fax: (808) 533-7844
with a copy to:
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Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Lee Meyerson, Esq.
Telephone: (212) 455-2000
Fax: (212) 455-2502
If to BNP:
Banque Nationale de Paris
Affaires Juridiques et Fiscales
Affaires Juridiques Internationales
1, Boulevard Haussmann
75009 Paris
France
Attention: General Counsel
Telephone: (011) (33) (1) 40.14.26.78
Fax: (011) (33) (1) 40.14.86.30
with a copy to:
Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, California 94104
Attention: Rodney R. Peck, Esq.
Telephone: (415) 983-1000
Fax: (415) 983-1200
and
Cleary Gottlieb Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Robert L. Tortoriello, Esq.
Telephone: (212) 225-2000
Fax: (212) 225-3999
SECTION 6.12 Governing Law; Consent to Jurisdiction. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of law. Each of
the parties hereto hereby irrevocably and unconditionally consents to submit to
the non-exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in the County of New York, for
any action, proceeding or investigation in any court or before any governmental
authority ("Litigation") arising out of or relating to this Agreement and the
transactions contemplated hereby. Each of the parties hereto hereby irrevocably
and unconditionally waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any such Litigation, the defense of
sovereign immunity, any claim that it is not personally subject to the
jurisdiction of the aforesaid courts for any reason other than the failure to
serve process in accordance with this Section 6.12, that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise), and to the fullest extent permitted by applicable law, that the
Litigation in any such court is brought in an inconvenient forum, that the venue
of such Litigation is improper, or that this Agreement, or the subject matter
hereof, may not be enforced in or by such courts and further irrevocably waives,
to the fullest extent permitted by applicable law, the benefit of any defense
that would hinder, fetter or delay the levy, execution or collection of any
amount to which the party is entitled pursuant to the final judgment of any
court having jurisdiction. Each of the parties irrevocably and unconditionally
waives, to the
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fullest extent permitted by applicable law, any and all rights to trial by jury
in connection with any Litigation arising out of or relating to this Agreement
or the transactions contemplated hereby.
(ii) BNP hereby irrevocably designates French American Banking Corporation
(in such capacity, the "Process Agent"), with an office at 200 Liberty Street,
New York, New York, 10281 its designee, appointee and agent to receive, for and
on its behalf, service of process in such jurisdiction in any Litigation arising
out of or relating to this Agreement and such service shall be deemed complete
upon delivery thereof to the Process Agent; provided that in the case of any
such service upon the Process Agent, the party effecting such service shall also
deliver a copy thereof to BNP in the manner provided in Section 6.11. Each of
the Company and BNP further irrevocably consents to the service of process out
of any of the aforementioned courts in any such Litigation by the mailing of
copies thereof by registered mail, postage prepaid, to such party at its address
set forth in this Agreement, such service of process to be effective upon
acknowledgment of receipt of such registered mail. BNP expressly acknowledges
that the foregoing waiver is intended to be irrevocable under the laws of the
State of New York and of the United States of America; provided that BNP's
consent to jurisdiction and service contained in this Section 6.12 is solely for
the purpose referred to in this Section 6.12 and shall not be deemed to be a
general submission to said courts or in the State of New York other than for
such purpose. If the Process Agent shall cease to act as such or to exist, BNP
covenants that it shall appoint without delay another such agent reasonably
satisfactory to the Company.
SECTION 6.13 Legends. (a) Upon original issuance thereof, and until such
time as the same is no longer required under the applicable requirements of the
Securities Act or applicable state securities or "blue sky" laws or until such
time as the Equity Securities are no longer subject to the restrictions of this
Agreement, any certificate issued representing any Equity Securities held by
BNP, any of its Affiliates or any Qualified Transferee shall bear the following
conspicuous legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO VOTING
AGREEMENTS, RESTRICTIONS ON TRANSFER AND CERTAIN OTHER LIMITATIONS SET
FORTH IN A CERTAIN STANDSTILL AND GOVERNANCE AGREEMENT DATED AS OF NOVEMBER
1, 1998 BETWEEN FIRST HAWAIIAN, INC. (THE "COMPANY") AND BANQUE NATIONALE
DE PARIS, AS THE SAME MAY BE AMENDED FROM TIME TO TIME (THE "AGREEMENT"),
COPIES OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY. THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON VOTING PROVIDED FOR IN THE AGREEMENT AND NO VOTE OF SUCH
SECURITIES THAT CONTRAVENES SUCH AGREEMENT SHALL BE EFFECTIVE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
("TRANSFERRED") UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH TRANSFER IS EXEMPT FROM
REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS."
(b) Upon any acquisition by BNP or any of its Affiliates of additional
Equity Securities pursuant to this Agreement, BNP shall, and shall cause each of
its Affiliates to, submit any and all certificates representing such Equity
Securities to the Company so that the legends required by this Section 6.13 may
be placed thereon.
(c) The Company may make a notation on its records or give instructions to
any transfer agents or registrars for the Equity Securities in order to
implement the restrictions on Transfer set forth in this Agreement.
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(d) In connection with any Transfer of Equity Securities, the transferor
shall provide the Company with such customary certificates, opinions and other
documents as the Company may reasonably request to assure that such Transfer
complies fully with applicable securities and other laws.
(e) The Company shall use its reasonable best efforts to comply on a timely
basis with any request for any Transfer of Equity Securities made in accordance
with the provisions of this Agreement; provided, however, that the Company shall
not incur any liability for any delay in recognizing any Transfer of Equity
Securities if the Company in good faith reasonably believes that such Transfer
may have been or would be in violation in any material respect of the provisions
of the Securities Act, applicable state securities or "blue sky" laws, or this
Agreement.
(f) After such time as any of the legends described by this Section 6.13
are no longer required on any certificate or certificates representing the
Equity Securities and such Equity Securities are no longer subject to this
Agreement, upon the request of BNP, the Company will cause such certificate or
certificates to be exchanged for a certificate or certificates that do not bear
such legends.
SECTION 6.14 Interpretation. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
SECTION 6.15 Effectiveness. This Agreement shall become effective upon
consummation of the Merger and prior thereto shall be of no force or effect. If
the Merger Agreement shall be terminated in accordance with its terms, this
Agreement shall automatically be deemed to have been terminated and shall
thereafter be of no force or effect.
IN WITNESS WHEREOF, the parties hereto have executed this Standstill and
Governance Agreement as of the date first written above.
FIRST HAWAIIAN, INC.
By: /s/ HOWARD H. KARR
--------------------------------------
Name: Howard H. Karr
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
BANQUE NATIONALE DE PARIS
By: /s/ V. LEVY GARBOUA
--------------------------------------
Name: V. Levy Garboua
Title: Directeur General Delegue
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<PAGE> 1
EXHIBIT 4(II)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 1, 1998 (this
"Agreement"), between First Hawaiian, Inc., a Delaware corporation (the
"Company") and Banque Nationale de Paris, a societe anonyme or limited liability
banking corporation organized under the laws of the Republic of France ("BNP").
W I T N E S S E T H :
WHEREAS, the Company and BancWest Corporation, a corporation organized
under the laws of the State of California and a wholly owned subsidiary of BNP
("BancWest"), have entered into a Merger Agreement, dated as of May 28, 1998
(the "Merger Agreement"), pursuant to which and subject to the terms and
conditions thereof, among other things, BancWest will merge with and into the
Company (the "Merger"), and all of the outstanding shares of common stock,
without par value, of BancWest (the "BancWest Common") will be converted into
shares of Class A Common Stock (as defined herein); and
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and BNP are entering into a Standstill and Governance Agreement,
dated as of the date hereof (the "Standstill Agreement"); and
WHEREAS, the Company and BNP are entering into this Agreement to establish
certain arrangements with respect to the shares of Class A Common Stock into
which the BancWest Common held by BNP will be converted in the Merger.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein:
"associate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act.
"Business Day" means any day excluding Saturday, Sunday or other day
on which banks are required or authorized by law to be closed in the
Honolulu, Hawaii, San Francisco, California or Paris, France.
"Class A Common Stock" shall mean the Class A Common Stock, par value
$1.00 per share, of the Company.
"Company Common Shares" shall mean, collectively, the Class A Common
Stock and the Company Common Stock.
"Company Common Stock" shall mean Common Stock, par value $1.00 per
share, of the Company (other than the Class A Common Stock).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended and any successor thereto, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to
time.
"Holder" shall mean any party hereto (other than the Company) and
their permitted successors and assigns, and any Person who becomes a party
hereto.
"Holders' Representative" shall mean BNP, as representative of the
Holders.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any Group comprised of two or more of the
foregoing.
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"Registrable Securities" shall mean (x) the shares of Company Common
Stock issuable upon the transfer of the shares of Class A Common Stock that
may be owned from time to time by BNP and (y) any securities which have
been or may be issued or distributed in respect of Class A Common Stock
issued to BNP in the Merger or any other shares covered by clause (x) by
way of stock dividend, stock split or other distribution, recapitalization,
or reclassification, exchange offer, merger, consolidation or similar
transaction. As to any particular Registrable Securities, once issued such
Securities shall cease to be Registrable Securities when (i) such
securities shall have been sold pursuant to Rule 144 (or any successor
provision) under the Securities Act, (ii) a registration statement with
respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in
accordance with the plan of distribution set forth in such registration
statement, (iii) such securities shall have been otherwise transferred
(except pursuant to Section 3.2(c)(iii) or (vi) of the Standstill
Agreement), new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company, and subsequent
disposition of them shall not require registration or qualification of them
under the Securities Act or any state securities or blue sky law then in
force or (iv) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and securities exchange or NASD registration and
filing fees, (ii) all fees and expenses of complying with securities or
blue sky laws (including reasonable fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the
Registrable Securities and, if the Registrable Securities are debt
securities, in connection with a determination of their eligibility for
investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority of such Registrable Securities being
sold may designate to the extent provided in Section 4(d)), (iii) all
printing, duplicating, word processing, telephone, facsimile, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with
the listing of the Registrable Securities on any securities exchange or
quotation of the Registrable Securities on any inter-dealer quotation
system pursuant to Section 4(h), (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any "cold comfort" letters required by or incident to such
performance and compliance, (vi) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, and (vii) if the
Registrable Securities are preferred stock or debt securities, all
applicable rating agency fees with respect thereto; provided, that
Registration Expenses shall exclude all underwriting discounts and
commissions, selling or placement agent or broker fees and commissions,
transfer taxes, if any, and the fees and disbursements of counsel for the
Holders.
"SEC" shall mean the Securities and Exchange Commission, or any
successor governmental body or agency.
"Securities Act" shall mean the Securities Act of 1933, as amended and
any successor thereto, and the rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. Subject to the last sentence
of this Section 2(a) and Article III of the Standstill Agreement, each time the
Company proposes to register shares of Company Common Stock under the Securities
Act (other than a registration on Form S-4 or S-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account, pursuant to a registration statement on which it is permissible to
register Registrable Securities for sale to the public under the Securities Act,
it will give reasonably prompt written notice to each Holder of its intention to
do so and of such Holder's rights under this Section 2. Upon the written request
of any Holder made in good faith on behalf of such Holder and made within 15
days after the receipt of any such notice (which request shall specify the
number and type of Registrable Securities intended to be disposed of by such
Holder), the Company will use its reasonable best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by each such Holder; provided that (i)
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration
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<PAGE> 3
statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed registration or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each Holder who has requested to include
Registrable Securities in such registration and in the case of a determination
not to register, thereupon shall be relieved, subject to paragraph (b) below, of
its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith) and in the case of a determination to delay registering,
the Company may delay registering the Registrable Securities for the same period
as the delay in registering such other securities, and (ii) if such registration
involves an underwritten offering by the Company, the Holders requesting to be
included in the Company's registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company, with such differences, including any with respect to
indemnification and contribution, as may be customary or appropriate in combined
primary and secondary offerings. Each Holder shall be permitted to withdraw all
or part of such Holder's Registrable Securities from a registration pursuant to
this Section 2(a) at any time prior to the effective date thereof; provided,
that the Company shall be entitled to reimbursement from a Holder of withdrawn
Registrable Securities for any registration fees incurred by the Company in
connection with the registration of such Registrable Securities. In order to
assure the efficient operation of this Section 2(a), BNP may, upon transfer of
any shares of Class A Common Stock in accordance with the provisions of the
Standstill Agreement, enter into appropriate agreements with any transferee who
would become a Holder to limit such transferee's rights to cause the Company to
register securities pursuant to this Section 2(a) without the consent of the
Holders' Representative; provided that BNP shall deliver a copy of any such
agreement to the Company. The Holders shall not have any rights under this
Section 2(a) if, during the twelve-month period preceding the date on which
notice would be required to be given by the Company pursuant to the first
sentence of this paragraph (a), the number of registrations requested by the
Holders pursuant to this Section 2(a), when combined with the number of
registrations registered pursuant to Section 3(a), would exceed three.
(b) Conversion to Demand Registration. In the event that the Company shall
determine for any reason not to proceed with a proposed registration as
described in paragraph (a) above, one or more Holders shall be permitted to
request that the Company continue such registration pursuant to, and subject to
all of the terms and conditions of, Section 3 (including, without limitation,
the limitations on the number, frequency, amount of securities to be requested
to be registered and the ability of the Company to delay registration or suspend
sales contained in Sections 3(a) and 3(g)). Any such request shall be made by
written notice delivered within two Business Days of receipt by such Holders of
the notice from the Company to the Holders of the Company's determination not to
proceed with the registration and shall count as a demand under Section 3(a).
(c) Expenses. The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 2.
(d) Priority. If a registration pursuant to this Section 2 involves an
underwritten offering by the Company (as described in Section 2(a)(ii)) and the
managing underwriter with respect to such offering advises the Company and the
Holders electing to participate in such offering in writing that, in its
opinion, the number of securities requested to be included in such registration
exceeds the number of securities which can be sold in such offering without
being likely to have an adverse effect on the offering of securities as
contemplated by the Company (including the price at which the Company proposes
to sell such securities), then the Company will include in such registration (i)
if the registration is a primary registration on behalf of the Company, (x)
first, all securities proposed to be sold by the Company, and (y) second, the
Registrable Securities requested to be included in such registration by the
Holders and any other Person requested to be included in such registration, pro
rata in accordance with the number of Registrable Securities proposed to be
included by each Holder and the number of securities proposed to be included by
such other Person, respectively, and (ii) if the registration is a secondary
registration on behalf of a Person other than the Company or a Holder of
Registrable Securities, (x) first, all the securities proposed to be sold by
such other Person and (y) second, the number of securities the Company proposes
to sell for its own account and the number of Registrable Securities which the
Holders have requested to be included in such registration
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pursuant to this Section 2, pro rata in accordance with the combined number of
securities proposed to be registered by the Company and the number of
Registrable Securities requested to be included, respectively.
(e) Custody Agreement and Power of Attorney. Upon the Company's request,
the Holders' Representative will execute and deliver a customary custody
agreement and power of attorney in form and substance reasonably satisfactory to
the Company with respect to the Registrable Securities to be registered pursuant
to this Section 2 (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Holders will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares or other units of Registrable Securities (duly endorsed in blank by the
registered owner or owners thereof or accompanied by duly executed stock powers
in blank) and irrevocably appoint said custodian and attorney-in-fact as such
Holder's agent and attorney-in-fact with full power and authority to act under
the Custody Agreement and Power of Attorney on behalf of such Holder with
respect to the matters specified therein.
3. Registration on Demand.
(a) Right to Demand Registration. (i) Subject to Article III of the
Standstill Agreement, upon the written request of one or more Holders requesting
that the Company effect the registration under the Securities Act of all or part
of such Holders' Registrable Securities (constituting in the aggregate at least
2% but no more than 25% of the total number of Company Common Shares or other
Registrable Securities outstanding at the date of such request or such lesser
number as the managing underwriter, if any, of the offering may determine is the
maximum number of shares that may be offered without adversely affecting the
trading market of the Company Common Stock, as provided in paragraph (f) below)
and specifying the intended method of disposition thereof, the Company thereupon
will, as expeditiously as possible, use its reasonable best efforts to effect
the registration under the Securities Act of the Registrable Securities which
the Company has been so requested to register by such Holder, provided that the
Company shall be obligated to register Registrable Securities pursuant to this
Section 3(a) on only five occasions and no more than two demand registrations
may be requested in any twelve-month period, and provided further that the
Company shall not be obligated to effect more than three registrations pursuant
to this Section 3(a) and Section 2(a) in any twelve-month period. In order to
assure the efficient operation of this Section 3(a), BNP may, upon transfer of
any shares of Class A Common Stock in accordance with the provisions of the
Standstill Agreement, enter into appropriate agreements with any transferee who
would become a Holder to limit such transferee's rights to cause the Company to
register securities pursuant to this Section 3(a) without the consent of the
Holders' Representative; provided that BNP shall deliver a copy of such
agreement to the Company.
(ii) Promptly upon receipt of any request for a demand registration
pursuant to paragraph (a)(i) above (but in no event more than five Business Days
thereafter), the Company shall serve written notice of any such request to all
other Holders, and the Company shall include in such registration all
Registrable Securities of any Holder with respect to which the Company has
received written requests for inclusion therein within 30 Business Days after
such notice has been given pursuant to Section 6(f). All requests made pursuant
to this Section 4(a)(ii) shall specify the kind and aggregate amount of
Registrable Securities to be registered and the intended method of distribution
of such securities.
(b) Registration Statement Form. Registration statements filed pursuant to
this Section 3 shall be on such form of the SEC as shall be selected by the
Company, and as shall permit the disposition of the subject Registrable
Securities in accordance with the intended methods of disposition specified by
the Holders.
(c) Expenses. The Company will pay all Registration Expenses in connection
with the registrations of Registrable Securities pursuant to this Section 3.
(d) Effective Registration Statement. A registration requested pursuant to
this Section 3 will not be deemed to have been effected unless it has become
effective; provided, that if, within 90 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is (i)
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court or (ii) the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
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such registration are not satisfied by reason of a wrongful act,
misrepresentation or breach of the applicable underwriting agreement by the
Company, such registration will be deemed not to have been effected.
(e) Selection of Underwriters. If a requested registration pursuant to
this Section 3 involves an underwritten offering, the Holders of a majority of
the Registrable Securities which the Company has been requested to register in
such registration shall have the right to select in good faith the investment
banker or bankers and managers to administer the offering; provided, however,
that such investment banker or bankers and managers shall be reasonably
satisfactory to the Company.
(f) Priority. If a requested registration pursuant to this Section 3
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Company which are
not Registrable Securities) would jeopardize the success of the offering, the
Company will include in such registration only the Registrable Securities
requested to be included in such registration. In the event that the number of
Registrable Securities requested to be included in such registration exceeds the
number which, in the opinion of such managing underwriter, can be sold, the
number of securities of each class of such Registrable Securities to be included
in such registration shall be limited to the number which, based on the opinion
of the managing underwriter, can be sold without jeopardizing the success of the
offering, pro rata in accordance with the number of Registrable Securities
requested to be included by each Holder. In the event that the number of
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold
without jeopardizing the success of the offering, the Company may include in
such registration the securities the Company proposes to sell up to the number
of securities that, in the opinion of the managing underwriter, can be sold.
(g) Certain Delay Rights. Notwithstanding any other provision of this
Agreement to the contrary, if at any time (i) while a registration statement is
effective or (ii) before a registration statement has been filed pursuant to
this Section 3, the sale of Registrable Securities covered by such registration
statement or the disclosure of information therein or in any related prospectus
or prospectus supplement would in the reasonable good faith judgment of a
majority of the entire Board of Directors of the Company (including a majority
of the Independent Directors (as defined in the Standstill Agreement))
materially interfere with or materially and adversely affect any pending or
proposed acquisition, merger, recapitalization, consolidation, reorganization,
financing or other material event or transaction, or negotiations, discussions
or pending proposals with respect thereto, and would thus not be in the best
interests of the stockholders of the Company or materially interfere with a
pending share repurchase program (a "Disadvantageous Condition"), the Company
may, as applicable, (i) defer filing such registration statement pursuant to
Section 3(a) of this Agreement or (ii) suspend sales of shares by any Holder
until such Disadvantageous Condition no longer exists (notice of which the
Company shall promptly deliver to the Holders' Representative); provided, that
any delay by the Company pursuant to this Section 3(g) may not exceed (A) 60
consecutive days or (B) 120 days in any twelve-month period. With respect to
each Holder, upon the receipt of any such notice of a Disadvantageous Condition,
such Holder shall, as applicable (i) forthwith discontinue use of the prospectus
and any prospectus supplement under such Registration Statement and suspend
sales of Registrable Securities until such Disadvantageous Condition no longer
exists, as advised by the Company to the Holders' Representative (which notice
shall be given promptly following such time as the Disadvantageous Condition no
longer exists), and (ii) if so directed by the Company, deliver to the Company
all copies, other than permanent file copies then in such Holder's possession,
of the prospectus and prospectus supplements then covering such Registrable
Securities at the time of receipt of such notice.
4. Registration Procedures. If and whenever the Company is required to use
its reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:
(a) prepare and file as promptly as practicable (but in no event later
than 30 days after the earlier of (i) the date that all Holders to whom
notice has been given pursuant to Section 4(a)(ii) have responded to such
notice and (ii) the date that the time period to receive requests under
Section 4(a)(ii) has expired) with the SEC a registration statement with
respect to such Registrable Securities and use its
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reasonable best efforts to cause such registration statement to become
effective; provided, that the Company may in its sole discretion
discontinue any registration of its securities which is being effected
pursuant to Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for the shorter of a period of (i) 90
days or (ii) until the distribution pursuant to such registration statement
is completed, and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller thereof set forth in such registration statement;
provided, that before filing a registration statement pursuant to Section 3
(or Section 2 if it mentions any Holder) or any prospectus or any
amendments or supplements thereto naming any Holder, the Company will
furnish to the Holders' Representative, the underwriters (if any) and their
respective counsel copies of all documents proposed to be filed and will
provide the Holders' Representative, the underwriters (if any) and their
respective counsel the opportunity to comment thereon;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus and prospectus supplement, as
applicable), in conformity with the requirements of the Securities Act, and
such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities by such seller,
but only while the Company shall be required under the provisions hereof to
cause such registration statement to remain current;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller or
managing underwriter shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable
each seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, except that the Company shall
not for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction where, but for the requirements
of this Section 4(d), it would not be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the sellers to consummate the disposition of such
Registrable Securities;
(f) promptly notify the sellers of Registrable Securities and the
managing underwriter or underwriters, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 4(b), of the Company's
becoming aware that the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing or, if for any other reason it shall be necessary during such
time period to amend or supplement the registration statement or prospectus
in order to comply with the Securities Act, and at the request of such
seller or managing underwriter promptly prepare and furnish to such seller
or managing underwriter a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable (but not more than 15 months)
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<PAGE> 7
after the effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder;
(h) if such Registrable Securities are shares of Company Common Stock,
use its reasonable best efforts to cause all such Registrable Securities
(or, in the case of Registrable Securities that are convertible into or
exercisable for shares of Company Common Stock, such underlying shares of
Company Common Stock) to be listed on any securities exchange on which
Company Common Stock is then listed, if such Registrable Securities are not
already so listed and if such listing is then permitted under the rules of
such exchange and, to use its reasonable best efforts to cause any other
Registrable Securities, if not already so listed or quoted, to be listed on
any securities exchange or quoted on any inter-dealer quotation system on
which securities of the same class or type are then so listed or quoted;
(i) enter into and perform its obligations under such customary
agreements (including an underwriting agreement in customary form for
underwriting agreements (including indemnities no less favorable than those
set forth in Section 5(a)) with respect to secondary distributions at such
time) as the sellers of a majority of such Registrable Securities may
reasonably request in connection with the disposition of such Registrable
Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of
the type customarily covered by "cold comfort" letters as the sellers of a
majority of such Registrable Securities or the managing underwriter shall
reasonably request; and
(k) make available for inspection by representatives of the sellers of
the Registrable Securities to be sold in such registration, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by such seller or any such underwriter, such financial and other
records, corporate documents and properties of the Company as are
customarily made available in connection with a "due diligence"
investigation for an underwritten secondary offering, and cause all of the
Company's (and its subsidiaries) officers and accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement as is
customarily made available in connection with a "due diligence"
investigation for an underwritten secondary offering and make available
such officers, accountants and other employees in connection therewith;
provided, however, that (i) the sellers and the underwriters and their
respective counsel, accountants and other agents shall have entered into a
confidentiality agreement customary in form and reasonably acceptable to
the Company and (ii) the sellers and the underwriters and their respective
counsel, accountants and other agents shall use their reasonable best
efforts to minimize the disruption to the Company's business and coordinate
any such investigation of the books, records and properties of the Company
and any such discussions with the Company's officers and accountants so
that all such investigations and all such discussions occur at the same
time.
(l) notify the selling Holders and the managing underwriter or
underwriters and (if requested) confirm such advice in writing, as soon as
reasonably practicable after notice thereof is received by the Company (i)
when the registration statement or any amendment thereto has been filed or
becomes effective, when the prospectus or any amendment or supplement to
the prospectus has been filed, and, to furnish such selling holders and
managing underwriter or underwriters, if any, with copies thereof, (ii) of
any written comments by the SEC or any request by the SEC or any other
federal or state governmental authority for amendments or supplements to
the registration statement or the prospectus or for additional information,
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or any order preventing or
suspending the use of any preliminary or final prospectus or the initiation
or threatening of any proceedings for such purposes, (iv) if, at any time,
the representations and warranties of the Company contemplated by paragraph
(i) above cease to be true and correct in all material respects or (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for offering
or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
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<PAGE> 8
(m) make every reasonable effort to prevent or obtain the withdrawal
of any stop order or other order suspending the use of any preliminary or
final prospectus or suspending any qualification of the Registrable
Securities at the earliest possible moment;
(n) if reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters and the Holders of
a majority of the Registrable Securities being sold agree should be
included therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with
respect to the number of Registrable Securities being sold to, and the
purchase price being paid therefor by, such underwriter or underwriters and
with respect to any other terms of the offering of the Registrable
Securities to be sold in such offering; and make all required filings of
such prospectus supplement or post-effective amendment as soon as
reasonably practicable after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(o) cooperate with the selling Holders and the managing underwriter,
underwriters or agent, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwritings may request at least two Business Days prior to any sale or
Registrable Securities to the underwriters;
(p) not later than the effective date of the applicable registration
statement (or if later, the earliest Business Day thereafter on which a
CUSIP number is available), provide a CUSIP number for all Registrable
Securities and provide the applicable transfer agent with printed
certificates for the Registrable Securities which are in a form eligible
for deposit with The Depository Trust Company (if such Registrable
Securities are then eligible for such deposit);
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent, if any, participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(r) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement.
The Company may require each seller of Registrable Securities as to which
any registration statement is being effected to furnish the Company with such
information regarding such seller, and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities, as the
Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(f), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4(f), and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give such notice, the period mentioned in Section
4(b)(i) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 4(f) and
through and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by Section 4(f).
5. Indemnification.
(a) Indemnification by the Company. In the event of any registration of
any securities of the Company under the Securities Act pursuant to Section 2 or
3, the Company hereby indemnifies and agrees to hold harmless, to the extent
permitted by law, the seller of any Registrable Securities covered by such
registration
8
<PAGE> 9
statement, each affiliate of such seller and its directors and officers or
general and limited partners (and the directors, officers, affiliates and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Holder Indemnified Parties"), against any and
all losses, claims, damages or liabilities, joint or several, and expenses to
which such Holder Indemnified Party may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof, whether or not such Holder
Indemnified Party is a party thereto) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and the Company will reimburse such Holder Indemnified Party for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or proceeding
as such expenses are incurred; provided, that the Company shall not be liable to
any Holder Indemnified Party in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, in any such
preliminary, final or summary prospectus, or any amendment or supplement thereto
(i) following notice by the Company to such Holder Indemnified Party of any
Disadvantageous Condition or otherwise pursuant to Section 4(f) if such Holder
Indemnified Party thereafter uses the prospectus in effect at the time of such
notice, unless the Company has delivered a notice that such Disadvantageous
Condition or other circumstance specified in Section 4(f) no longer exists or
(ii) in reliance upon and in conformity with written information with respect to
such Holder Indemnified Party furnished to the Company by such Holder
Indemnified Party for use in the preparation thereof; and provided, further,
that the Company will not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, under the indemnity agreement in this Section 5(a) with respect
to any preliminary prospectus or the final prospectus or the final prospectus as
amended or supplemented, as the case may be, to the extent that any such loss,
claim, damage or liability of such underwriter or controlling Person results
from the fact that such underwriter sold Registrable Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Holder or any Holder Indemnified Party and shall survive the transfer of
such securities by any Holder.
(b) Indemnification by the Sellers and Underwriters. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 2 or 3 herein, that the
Company have received an undertaking reasonably satisfactory to it from the
prospective sellers of such Registrable Securities or any underwriter to
indemnify and hold harmless, severally and not jointly, the Company or any
underwriter, as the case may be, and any of their respective affiliates,
directors, officers and controlling Persons (the "Company Indemnified Parties",
and together with the Holder Indemnified Parties, the "Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or several,
and expenses to which such Company Indemnified Party may become subject under
the Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Company Indemnified Party is a party thereto) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the written
information furnished to the Company by such seller or such
9
<PAGE> 10
underwriter expressly for use in the preparation of such registration statement,
preliminary, final or summary prospectus, or any amendment or supplement
thereto, or a document incorporated by reference into any of the foregoing and
the sellers and such underwriters will reimburse such Company Indemnified Party
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or proceeding
as such expenses are incurred. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
such underwriter, or any Company Indemnified Party and shall survive the
transfer of such securities by any Holder.
(c) Notices of Claims, Etc. Promptly after receipt by an Indemnified Party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 5, such Indemnified Party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, that the failure of the Indemnified Party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under Section 5(a) or 5(b), except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, unless in the
reasonable judgment of the Indemnified Party's counsel a conflict of interest
between such Indemnified Parties and indemnifying parties may exist in respect
of such claim, the indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such Indemnified Party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof. If, in the reasonable judgment of the counsel for the
Indemnified Party, having common counsel would result in a conflict of interest
between the interests of such Indemnified Parties and indemnifying parties, then
such Indemnified Party may employ separate counsel reasonably acceptable to the
indemnifying party to represent or defend such Indemnified Party in such action,
it being understood, however, that the indemnifying party shall not be liable
for the reasonable fees and expenses of more than one separate firm of attorneys
at any time for all such Indemnified Parties (and not more than one separate
firm of local counsel at any time for all such Indemnified Parties) in such
action. Without the consent of the Indemnified Party, no indemnifying party will
consent to the entry of any judgment or enter into any settlement that includes
as a term thereof an admission of wrongdoing by the Indemnified Party, that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation or that imposes material obligations on the
Indemnified Party. No Indemnified Party shall agree to any settlement without
the prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld).
(d) Contribution. If recovery is not available under the foregoing
indemnification provisions of this Section 5 for any reason other than as
expressly specified therein, the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and expenses
except to the extent that contribution is not permitted under Section 11(f) of
the Securities Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered (x) the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds received by each), (y) the
relative fault of the parties in connection with the statements, actions or
omissions which resulted in the losses, claims, damages or liabilities which
gave rise to the indemnity obligation pursuant to this Section 5, and (z) any
other relevant equitable considerations under the circumstances. The relative
fault of the parties shall be determined with reference to, among other things,
whether such statement or omission relates to information supplied by the
indemnifying party or by the Indemnified Party and the parties' relative
knowledge, access to information and opportunity to prevent such action or
omission. The amount paid or payable by a party under this Section 5(d) as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation which does not take account of
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<PAGE> 11
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding anything in this Section 5 to the contrary, no indemnifying
party (other than the Company) shall be required pursuant to this Section 5 to
contribute any amount in excess of the gross proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the Indemnified Parties
relate. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(e) Non-Exclusivity. The obligations of the parties under this Section 5
shall be in addition to any liability which any party may otherwise have to any
other party.
6. Miscellaneous.
(a) Rule 144. The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder, make
publicly available such information as is specified in Section (c)(2) of Rule
144), all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC.
(b) Holdback Agreement. In connection with any registration by the Company
of Company Common Stock, each Holder agrees not to effect any public sale or
distribution (except in connection with such underwritten public offering
pursuant to Section 2(a)), including any sale pursuant to Rule 144 under the
Securities Act, of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering
pursuant to Section 2(a)), during the seven days prior to, and during the
120-day period (or such lesser period as the managing underwriters may permit,
it being understood that the Company will request that such managing
underwriters act in good faith in determining whether to permit a lesser period)
after the effective date of such registration (other than a Registrable Security
included in such registration pursuant to Section 2(a)). If any registration of
Registrable Securities pursuant to Section 3 of thus Agreement shall be in
connection with an underwritten public offering, the Company agrees not to
effect any public sale or distribution (except in connection with such
underwritten public offering), of any equity securities of the Company or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering) during the seven days prior to, and during the 45-day period (or such
lesser period as the managing underwriters may permit) after the effective date
of such registration.
(c) Amendments and Waivers. (i) This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding. Each Holder of
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment authorized by this Section 6(c).
(ii) The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. Except as
otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
(d) Successors, Assigns and Transferees. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(e) Additional Parties. Upon the transfer of any shares of Class A Common
Stock pursuant to clauses (iii) or (vi) of Section 3.2(c) of the Standstill
Agreement, such transferee shall become a party to this Agreement by agreeing in
writing to be bound by the terms and conditions of this Agreement pursuant to an
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<PAGE> 12
instrument of assumption and shall thereby be deemed a Holder of Registrable
Securities for the purposes of this Agreement.
(f) Notices. All notices, requests, demands or other communications
provided herein shall be made in writing and shall be deemed to have been duly
given if delivered as follows:
If to the Company:
First Hawaiian, Inc.
999 Bishop Street
Honolulu, Hawaii 96813
Attention: Howard H. Karr
Telephone: (808) 525-8800
Facsimile: (808) 533-7844
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Lee Meyerson, Esq.
Fax: (212) 455-2502
If to BNP:
Banque Nationale de Paris
Affaires Juridiques et Fiscales
Affaires Juridiques Internationales
1, Boulevard Haussmann
75009 Paris
France
Telecopier No.: (011) (33) (1) 40.14.86.30
Telephone No.: (011) (33) (1) 40.14.26.78
Attention: General Counsel
with a copy to:
Pillsbury Madison & Sutro, LLP
235 Montgomery Street
San Francisco, California 94104
Attention: Rodney R. Peck, Esq.
Fax: (415) 983-1200
and
Cleary Gottlieb Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Robert L. Tortoriello
Fax: (212) 225-3999
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on (i) the date of delivery
if sent by messenger, (ii) on the Business Day following the Business Day on
which delivered to a recognized courier service if sent by overnight courier or
(iii) on the date received, if sent by fax or regular mail.
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<PAGE> 13
(g) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section to this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
(h) Severability. If any provision of this Agreement shall be declared by
any court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Agreement shall not be affected and shall remain in
full force and effect.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other parties.
(j) Remedies. Each of the parties hereto acknowledges and agrees that (i)
the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interests of the parties hereto, and (ii) the other
parties hereto would be irreparably damaged in the event any of the provisions
of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties hereto shall
be entitled to preliminary and permanent injunctive relief to prevent breaches
of the provisions of this Agreement by the other parties hereto without the
necessity of proving actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof and thereof, which rights shall be
cumulative and in addition to any other remedy to which the parties hereto may
be entitled hereunder or at law or equity.
(k) Governing Law; Consent to Jurisdiction. (i) This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the principles of conflicts of law. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
non-exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in the County of New York, for
any action, proceeding or investigation in any court or before any governmental
authority ("Litigation") arising out of or relating to this Agreement and the
transactions contemplated hereby. Each of the parties hereto hereby irrevocably
and unconditionally waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any such Litigation, the defense of
sovereign immunity, any claim that it is not personally subject to the
jurisdiction of the aforesaid courts for any reason other than the failure to
serve process in accordance with this Section 6(k), that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise), and to the fullest extent permitted by applicable law, that the
Litigation in any such court is brought in an inconvenient forum, that the venue
of such Litigation is improper, or that this Agreement, or the subject matter
hereof, may not be enforced in or by such courts and further irrevocably waives,
to the fullest extent permitted by applicable law, the benefit of any defense
that would hinder, fetter or delay the levy, execution or collection of any
amount to which the party is entitled pursuant to the final judgment of any
court having jurisdiction. Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any Litigation arising out of or relating to
this Agreement or the transactions contemplated hereby.
(ii) BNP hereby irrevocably designates French American Banking Corporation
(in such capacity, the "Process Agent"), with an office at 200 Liberty Street,
New York, New York, 10281, as its designee, appointee and agent to receive, for
and on its behalf service of process in such jurisdiction in any Litigation
arising out of or relating to this Agreement and such service shall be deemed
complete upon delivery thereof to the Process Agent; provided that in the case
of any such service upon the Process Agent, the party effecting such service
shall also deliver a copy thereof to BNP in the manner provided in Section 6(f).
Each of the Company and BNP further irrevocably consents to the service of
process out of any of the aforementioned courts in any such Litigation by the
mailing of copies thereof by registered airmail, postage prepaid, to such party
at its address set forth in this Agreement, such service of process to be
effective upon acknowledgment of receipt of such registered mail. BNP expressly
acknowledges that the foregoing waiver is intended to be
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<PAGE> 14
irrevocable under the laws of the State of Delaware and of the United States of
America; provided that BNP's consent to jurisdiction and service contained in
this Section 6(k) is solely for the purpose referred to in this Section 6(k) and
shall not be deemed to be a general submission to said courts or in the State of
New York other than for such purpose. If the Process Agent shall cease to act,
BNP covenants that it shall appoint without delay another such agent reasonably
satisfactory to the Company.
(l) Further Assurances. From time to time, at the reasonable request of
any other party hereto and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(m) No Third-Party Rights. Nothing in this Agreement, expressed or
implied, shall or is intended to confer upon any Person other than the parties
hereto or their respective successors or assigns, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement.
(n) Entire Agreement; No Oral Waiver; Construction. This Agreement and the
other agreements and documents contemplated hereby and thereby constitute the
entire agreement among the parties pertaining to the subject matter hereof and
supersede all prior and contemporaneous agreements, understandings and
representations, whether oral or written, of the parties in connection
therewith. No covenant or condition or representation not expressed in this
Agreement shall affect or be effective to interpret, change or restrict this
Agreement. No prior drafts of this Agreement and no words or phrases from any
such prior drafts shall be admissible into evidence in any action, suit or other
proceeding involving this Agreement or the transactions contemplated hereby.
This Agreement may not be changed or terminated orally, nor shall any change,
termination or attempted waiver of any of the provisions of this Agreement be
binding on any party unless in writing signed by the parties hereto. No
modification, waiver, termination, rescission, discharge or cancellation of this
Agreement and no waiver of any provision of or default under this Agreement
shall affect the right of any party thereafter to enforce any other provision or
to exercise any right or remedy in the event of any other default, whether or
not similar. This Agreement has been negotiated by the parties hereto and their
respective legal counsel, and legal or equitable principles that might require
the construction of this Agreement against the party drafting this Agreement
will not apply in any construction or interpretation of this Agreement.
(o) Noncontravention of Other Agreements. Notwithstanding any other
provision of this Agreement to the contrary, no Holder shall have any right to
sell, transfer or otherwise dispose of any Registrable Securities in
contravention of the terms of the Merger Agreement or the Standstill Agreement.
(p) No Inconsistent Agreements. The Company agrees not to enter into any
other agreement that is inconsistent with or conflicts with any provision of
this Agreement or which would impair the ability of the Company to perform its
obligations under this Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
FIRST HAWAIIAN, INC.
By: /s/ HOWARD H. KARR
--------------------------------------------
Name: Howard H. Karr
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
BANQUE NATIONALE DE PARIS
By: /s/ V. LEVY GARBOUA
--------------------------------------------
Name: V. Levy Garboua
Title: Directeur General Delegue
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