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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934 (Amendment No. )*
BANCWEST CORPORATION
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
059790 10 5
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(CUSIP Number)
Banque Nationale de Paris French American Banking Corporation
16, Boulevard des Italiens 499 Park Avenue
75009, Paris, France New York, NY 10022
(011) (33) (1) 4014-7286 (212) 415-9626
Attention: Jacques Ardant Attention: Patrick Saurat
With copies to:
Rodney R. Peck Robert L. Tortoriello
Pillsbury Madison & Sutro LLP Cleary, Gottlieb, Steen & Hamilton
P.O. Box 7880 One Liberty Plaza
San Francisco, CA 94120 New York, NY 10006
(415) 983-1000 (212) 225-2000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
November 1, 1998
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of (S)(S) 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See (S) 240.13d-7(b)
for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
(CONTINUED ON FOLLOWING PAGES)
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CUSIP No. 059790 10 5
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1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY): BANQUE NATIONALE DE PARIS
94-1677765
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [X]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION REPUBLIC OF FRANCE
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NUMBER OF 7 SOLE VOTING POWER 25,274,312
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 540,456
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER 25,274,312
PERSON WITH
10 SHARED DISPOSITIVE POWER 540,456
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 25,814,768
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
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13 PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) 45%
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14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO
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CUSIP No. 059790 10 5
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1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY): FRENCH AMERICAN BANKING CORPORATION
13-5088640
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [X]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK
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NUMBER OF 7 SOLE VOTING POWER None
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 540,456
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER None
PERSON WITH
10 SHARED DISPOSITIVE POWER 540,456
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 540,456
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
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13 PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) Less than 1%
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14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO
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ITEM 1. SECURITY AND ISSUER.
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The class of equity securities to which this Statement on Schedule 13D
(this "Statement") relates is the common stock, par value $1.00 per share (the
"Common Stock"), of BancWest Corporation, a Delaware corporation (the "Issuer").
The principal executive offices of the Issuer are located at 999 Bishop Street,
Honolulu, Hawaii 96813.
ITEM 2. IDENTITY AND BACKGROUND.
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(a-c) This Statement is being filed by Banque Nationale de Paris ("BNP")
and French American Banking Corporation ("FABC" and, together with BNP, the
"Reporting Person"). BNP is a Societe Anonyme, or limited liability banking
corporation, organized under the laws of the Republic of France, the principal
businesses of which are the conduct of retail banking activities in France and
of corporate and private banking and other activities both in France and around
the world. FABC is a corporation organized under the laws of the State of New
York as an investment company, pursuant to Article XII of the New York Banking
Law (such a corporation, an "Article XII Corporation"). Article XII
Corporations are non-bank financial intermediaries, supervised and regulated by
the New York Banking Department, which are permitted to engage in a variety of
financially oriented activities other than deposit-taking within the State of
New York. FABC is a wholly owned subsidiary of Societe Financiere Auxiliare, a
Societe Anonyme, or limited liability banking corporation, organized under the
laws of the Republic of France and a wholly owned subsidiary of BNP, the
principal business of which is to serve as a holding company for participations
of BNP in group subsidiaries. The address of the principal executive offices of
BNP is 16, Boulevard des Italiens, 75009, Paris, France. The address of the
principal executive offices of FABC is 499 Park Avenue, New York, New York
10022. Certain information concerning the directors and executive officers of
BNP and FABC is set forth on Schedule I attached hereto, which is incorporated
herein by reference.
(d-e) On October 4, 1995, the Securities and Exchange Commission (the
"Commission") issued an Order Instituting Proceeding Pursuant to Section 21C of
the Securities Exchange Act of 1934, Making Findings, and Imposing Remedial
Sanctions (the "Order") against FABC regarding alleged violations of the credit
extension provisions under the Securities Exchange Act of 1934 (the "Exchange
Act") and Regulation U promulgated by the Board of Governors of the Federal
Reserve System. FABC discontinued the questioned practice after the allegations
were made and the underlying provisions clarified. Without admitting or denying
the allegations, FABC agreed (a) to disgorge fees charged to customers in
connection with the questioned practice and interest thereon, amounting to
$107,000 and $15,918.84, respectively, (b) to maintain policies reasonably
designed to ensure compliance with the credit extension policies, and (c) in the
event that FABC should determine to resume extending purpose credit to
customers, to (i) notify the Commission of such determination before resuming
those operations, and (ii) retain an independent consultant to review and make
recommendations as to its clearing. See In the Matter of French American
Banking Corporation, SEC Release No. 34-36333 (Oct. 4, 1995).
Except as described herein, during the last five years, none of BNP, SFA or
FABC nor, to the best knowledge of the Reporting Person, any person named in
Schedule I attached hereto has been (a) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (b) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future
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violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
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The Reporting Person acquired record ownership of the equity securities
reported herein on November 1, 1998 (the "Closing Date") in connection with the
consummation of the transactions contemplated by that certain Agreement and Plan
of Merger dated as of May 28, 1998 by and between BancWest Corporation, a
California corporation ("BancWest (California)"), and the Issuer (the "Merger
Agreement"). BNP was the record owner of 100% of the issued and outstanding
shares of BancWest (California) common stock as of the date of execution of the
Merger Agreement and held such common stock from that time through the Closing
Date as a part of its general investment portfolio. FABC was the record owner
of 100% of the issued and outstanding shares of Series A Preferred Stock with
Cumulative and Adjustable Dividends of Bank of the West, a wholly-owned
subsidiary of BancWest (California), as of the date of execution of the Merger
Agreement. Prior to the Closing Date, all of such shares of preferred stock
were transferred to BancWest (California) in exchange for shares of BancWest
(California) common stock. Effective as of the Closing Date and in connection
with the consummation of the transactions contemplated by the Merger Agreement:
(a) BancWest (California) merged with and into the Issuer (the "Merger"), (b)
the Issuer's corporate name changed from "First Hawaiian, Inc." to "BancWest
Corporation", and (c) the Issuer issued 25,274,312 shares of its Class A common
stock, par value $1.00 per share (the "Class A Common Stock"), to BNP and
540,456 shares of Class A Common Stock to FABC.
ITEM 4. PURPOSE OF TRANSACTION.
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The Reporting Person acquired the shares of Class A Common Stock received
by it in connection with the Merger for investment.
Pursuant to the terms of the Issuer's Amended and Restated Certificate of
Incorporation (the "Amended and Restated Certificate of Incorporation"), adopted
in connection with the consummation of the Merger Agreement and the transactions
contemplated thereby, the holders of Class A Common Stock are entitled to elect
a specified number of directors to the Issuer's Board of Directors and to
certain other rights and protections. In addition, BNP and the Issuer have
entered into a Standstill and Governance Agreement, effective as of the Closing
Date (the "Standstill Agreement"), which provides for, among other things,
certain restrictions on the ability of BNP and its affiliates to (a) take
certain actions that might result in a change in control of the Issuer, (b)
acquire additional shares of Common Stock or other securities of the Issuer, (c)
transfer its shares of Class A Common Stock, or (d) take other actions as a
stockholder of the Issuer or otherwise. See Item 6. Contracts, Arrangements,
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Understandings or Relationships with Respect to Securities of the Issuer. The
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Reporting Person intends to review from time to time the Issuer's business
affairs and financial position. Based upon such review, as well as general
economic and industry conditions existing at the time, the Reporting Person may
consider from time to time alternative courses of action as permitted by the
Standstill Agreement. Subject to the terms of the Standstill Agreement, such
actions may include the acquisition of Common Stock through open market
purchases, privately negotiated transactions, through a tender or exchange offer
or otherwise. Alternatively, and subject to the terms of the Standstill
Agreement, such actions may involve the sale of all or a portion of the
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Class A Common Stock in the open market, in privately negotiated transactions,
through a public offering or otherwise.
Except as set forth above and as described below in Item 6, the Reporting
Person has no plan or proposal of the type described in subparagraphs (a)
through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
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(a) BNP owns of record 25,274,312 shares of Class A Common Stock (the "BNP
Shares") (convertible upon the occurrence of certain circumstances described
below in Item 6 into 25,274,312 shares of Common Stock). FABC owns of record
540,456 shares of Class A Common Stock (the "FABC Shares") (convertible upon the
occurrence of certain circumstances described below in Item 6 into 540,456
shares of Common Stock). Collectively, the BNP Shares and the FABC Shares
represent 100% of the shares of Class A Common Stock issued and outstanding as
of the date hereof (convertible upon the occurrence of certain circumstances
described below in Item 6 into 45% of the shares of Common Stock that would be
issued and outstanding upon such conversion, based upon the number of shares of
Common Stock issued and outstanding as of the date hereof and the assumption
that the Class A Common Stock currently owned of record by the Reporting Person
were to be converted in full).
Except as set forth in this Item 5(a), neither the Reporting Person nor, to
the best knowledge of the Reporting Person, any person listed on Schedule I
hereto beneficially owns any shares of Common Stock or Class A Common Stock.
(b) Subject to the restrictions contained in the Standstill Agreement, (a)
BNP has sole voting and investment power with respect to the BNP Shares and any
shares of Common Stock into which such shares may be converted under the
circumstances described below in Item 6 and shared voting and investment power
with respect to the FABC Shares and any shares of Common Stock into which such
shares may be converted under the circumstances described below in Item 6 and
(b) FABC has shared voting and investment power with respect to the FABC Shares
and any shares of Common Stock into which such shares may be converted under the
circumstances described below in Item 6.
(c) Neither the Reporting Person nor, to the best knowledge of the
Reporting Person, any person listed on Schedule I hereto has effected any
transaction in shares of Common Stock during the past 60 days.
(d) The Reporting Person has the sole right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Class A Common Stock owned by it; provided, however, that the
Reporting Person has waived any right to receive any dividends otherwise payable
to it as a result of its being a record holder of Class A Common Stock on the
record date established by the Issuer's Board of Directors for payment of a 1998
fourth quarter dividend on shares of Common Stock.
(e) Not applicable.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
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TO SECURITIES OF THE ISSUER.
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Except as set forth below in this Item 6, there is no understanding or
relationship (legal or otherwise) among the persons named above in Item 2 or
between any such person and any other person with respect to any securities of
the Issuer, including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
TERMS OF THE CLASS A COMMON STOCK
The Amended and Restated Certificate of Incorporation provides for, among
other things, the creation of the Class A Common Stock. The following summary
of certain aspects of the Class A Common Stock is qualified in its entirety to
the copy of the Amended and Restated Certificate of Incorporation attached as
Exhibit 3(i) to the Issuer's Current Report on Form 8-K filed with the
Commission on November 5, 1998 (the "Issuer's Current Report") and incorporated
herein by reference.
Voting Rights
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The Issuer's Amended and Restated Certificate of Incorporation provides
that, except as may otherwise be required by law and except in connection with
the election of directors or certain class voting rights as set forth below,
each share of Class A Common Stock will be entitled to one vote 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 will vote together with the holders of
the Common Stock as one class. So long as any shares of Class A Common Stock
are outstanding, certain fundamental corporate actions by the Issuer will
require the consent or affirmative vote of the holders of a majority of the
outstanding shares of Class A Common Stock, voting separately as a class, if
such actions have not been approved by the affirmative vote of two-thirds of the
entire Board of Directors of the Issuer.
The Issuer's Amended and Restated Certificate of Incorporation provides
that so long as any shares of Class A Common Stock are outstanding, the
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, will
be required for each of the following actions (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 will vote separately as a class); unless any such action
has been approved by the affirmative vote of two-thirds of the entire Board of
Directors of the Issuer (which, as long as BNP continues to own a substantial
amount of Class A Common Stock, will require the concurrence of at least some of
the Class A Directors nominated by BNP) (in which case, only such vote, if any,
of the stockholders of the Issuer as is required under applicable law or
otherwise under the Issuer's Amended and Restated Certificate of Incorporation
or the Issuer's By-Laws will be required): (i) the amendment of the certificate
of incorporation or by-laws of the Issuer 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 Issuer 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
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such issuance would not constitute "non-voting shares" as defined in 12 C.F.R.
(S) 225.2(q)(2) or any successor provision; (iv) the issuance of shares of any
class of capital stock or other securities of the Issuer which are then entitled
to vote generally in the election of directions ("Voting Securities") to any
person or entity (including the subsidiaries of the Issuer 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 Issuer)
shall be deemed to be the issuance of Voting Securities for or into which such
securities are exercisable or convertible and if the Issuer enters into an
agreement to issue Voting Securities such Voting Securities shall be deemed to
be issued on the date that the Issuer executes an agreement to issue such Voting
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 Issuer is a constituent
company if the Issuer is not the surviving or resulting entity in such
transaction (or if the Issuer is the surviving or resulting entity and such
transaction results in a change of control or the sale, exchange, lease or
mortgage of all or substantially all of the Issuer's assets in one transaction
or a series of related transactions; (vi) any acquisition, directly or
indirectly, by the Issuer or any of its subsidiaries (except from the Issuer or
a subsidiary of the Issuer) 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 Issuer (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 Issuer 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 Issuer 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 Issuer, has a fair market value (determined
in accordance with the Issuer's Amended and Restated Certificate of
Incorporation) 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 Issuer
or such subsidiary of a definitive agreement to effect the last of such related
transactions, which will exceed one-fourth of the market capitalization of the
Issuer at such time; (vii) any disposition, directly or indirectly, by the
Issuer or any of its subsidiaries (except to the Issuer or a subsidiary of the
Issuer) 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
Issuer) exceed one-sixth of the total consolidated assets of the Issuer (as
shown on its balance sheet contained in the Issuer's most recently filed annual
or quarterly report) at the time of the execution by the Issuer 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 Issuer
or such subsidiary of a definitive agreement to effect the last of such
dispositions; (viii) the voluntary liquidation or dissolution of the Issuer; or
(ix) any merger, consolidation, recapitalization, reorganization, sale,
acquisition, other business combination or other transaction to which the Issuer
is a party involving the issuance of Voting Securities of the Issuer that does
not result in a change of control of the Issuer 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
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the total voting power of all Voting Securities of the Issuer 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. In addition, a two-thirds vote of the authorized number of
directors is required in order to alter or amend certain provisions of the
Issuer's By-Laws.
Election of Directors
---------------------
The Issuer's Amended and Restated Certificate of Incorporation provides
that the holders of the Class A Common Stock will have the right, voting
separately as a class, to elect that number of directors of the Issuer (the
"Class A Directors") equal to the product (rounded to the nearest whole number)
of (x) the Class A Multiplier (as defined below) and (y) the total number of
directors constituting the entire Board of Directors; provided that the number
of directors entitled to be elected by holders of Class A Common Stock cannot
constitute a majority of the total number of directors constituting the entire
Board of Directors. The holders of shares of Common Stock will not be entitled
to vote with respect to the election of the Class A Directors. The "Class A
Multiplier" is equal to .45, if the percentage of the outstanding Common Stock
and Class A Common Stock represented by shares of Class A Common Stock,
determined in accordance with the Issuer's Amended and Restated Certificate of
Incorporation (the "Class A Interest") 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%; .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%. The directors of the Issuer other than the Class A
Directors (the "Non-Class A Directors") will be elected by the holders of the
class or classes or series of stock entitled to vote therefor (currently
consisting only of the Common Stock), but excluding the Class A Common Stock.
The Issuer's Amended and Restated Certificate of Incorporation provides
that person who is not an officer of BNP or any of its affiliates may not be a
nominee for a Class A directorship unless such person is reasonably satisfactory
to the Board of Directors of the Issuer as evidenced by a resolution duly
adopted by a majority of the directors constituting the entire Board of
Directors of the Issuer prior to the time such person is nominated for a Class A
directorship.
Nominations for Chief Executive Officer and Chief Operating Officer
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Pursuant to the Issuer's Amended and Restated Certificate of Incorporation,
a nominating committee of Class A Directors and Non-Class A Directors was
established to nominate successors to the chief executive officer and chief
operating officer of the Issuer.
Conversion of Class A Common Stock
----------------------------------
The Issuer's Amended and Restated Certificate of Incorporation provides
that if (i) any share of Class A Common Stock is sold, transferred, assigned,
pledged, encumbered or otherwise disposed of (each such act a "Transfer") to any
person other than an (A) affiliate of the transferring holder, (B) a Qualified
Transferee (as defined below under "Standstill Agreement--Transfer Restrictions
and Related Provisions--Transfer Restrictions") or (C) a Qualified Pledgee (as
defined below under "Standstill Agreement--Transfer Restrictions and Related
Provisions--Transfer Restrictions"), then each such share of Class A Common
Stock will automatically be converted into one share of
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Common Stock. Each outstanding share of Class A Common Stock also will
automatically be converted into one share of Common Stock if the Class A
Interest decreases to less than 10%. In addition, shares of Class A Common
Stock may be converted into Common Stock at the option of the Reporting Person
following the commencement of a tender or exchange offer or a Business
Combination Proposal (as defined below) by BNP under the circumstances described
below under "Standstill Agreement--Standstill Related Provisions--Early Release
from Standstill Provisions".
STANDSTILL AGREEMENT
The following summary of the Standstill Agreement is qualified in its
entirety by reference to the copy of the agreement attached as Exhibit 4(i) to
the Issuer's Current Report and incorporated herein by reference.
Standstill and Related Provisions
---------------------------------
Standstill Period. The Standstill Agreement provides that, subject to
certain limited exceptions described below, during the four year period
commencing on the Closing Date (the "Standstill Period"), neither BNP nor any of
its affiliates, directors or executive officers may acquire beneficial ownership
of additional Voting Securities such that BNP and its affiliates would
beneficially own more than 45% of all Voting Securities outstanding (such
percentage or such lower percentage as may be in effect at any time in
accordance with the provisions described below, the "Permitted Ownership
Percentage" and such restrictions, the "Acquisition Restrictions"). The
Permitted Ownership Percentage will decrease as a result of a Transfer by BNP of
any capital stock of the Issuer, including securities convertible into, or
exchangeable for, such stock, and options, warrants or other rights to acquire
such stock ("Equity Securities") (other than Transfers by BNP to its affiliates
or Transfers pursuant to a Public Offering or Rule 144 Sale (each as defined
under "Transfer Restrictions and Related Provisions--Transfer Restrictions"
below) of less than 10% of the Equity Securities beneficially owned by BNP and
its affiliates). If BNP's and its affiliates' percentage ownership of the
Issuer's Equity Securities (the "Ownership Percentage") decreases by an
aggregate of less than 10% from the Ownership Percentage on the same date of the
prior year (the "Transfer Measurement Date") as a result of a Transfer of any
Equity Securities pursuant to a Public Offering or a Rule 144 Sale, BNP will be
permitted to acquire additional Equity Securities to maintain the Permitted
Ownership Percentage that was in effect on the Transfer Measurement Date. If
the BNP's Ownership Percentage decreases as a result of an issuance by the
Issuer of 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 will be permitted to purchase additional
Equity Securities in the open market or in privately-negotiated transactions so
long as, after giving effect to such purchases, its Ownership Percentage will
not exceed the then-applicable Permitted Ownership Percentage. If BNP's
Ownership Percentage increases to an amount in excess of the then-applicable
Permitted Percentage Ownership as the result of a repurchase or redemption of
Equity Securities by the Issuer, then BNP will be required to dispose of such
excess securities through either a sale of such securities to the Issuer or
pursuant to Public Offering or a Rule 144 Sale.
Notwithstanding the foregoing acquisition restrictions, BNP will be
entitled at any time to acquire additional shares of Common Stock if (i) BNP
makes a capital infusion into the Issuer (A) in response to the requirements of
applicable U.S. bank regulatory authorities, as advised in writing to the Issuer
by such authority, or (B) because the Issuer ceases to be a "well-capitalized"
bank holding company within the meaning of applicable bank regulatory guidelines
and is not restored to the status
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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 or (ii) the
Issuer shall become subject to any regulatory capital directive, or become an
institution in "troubled" condition under 12 C.F.R. (S) 263.81(c) or under any
successor provisions. Any shares of the Issuer acquired by BNP under
circumstances described in this paragraph will not be subject to the voting
restrictions described below under "Voting of Shares by the Reporting Person."
If BNP wishes to acquire additional shares of Common Stock following any such
acquisition of shares, such acquisition may only be effected through a Business
Combination Proposal (as defined under "--Early Release from Standstill
Provisions" below) which provides for a price per share that is determined by an
independent investment banking firm to be fair from a financial point of view to
the holders of the Common Stock.
Early Release from Standstill Provisions. The Acquisition Restrictions
will not apply if:
(i) a third party who is not an affiliate of BNP or any of its
affiliates (a "Third Party") commences a bona fide tender or exchange offer
for more than 50% of the outstanding Common Stock and Class A Common Stock
(collectively, the "Issuer Common Shares") and the Issuer's Board of
Directors 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 rules of
the Commission and (y) adopt a stockholders' rights plan (if the Issuer
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 Issuer's Board of Directors 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 Issuer Common Shares (other than as a result of purchases of
such securities from the Issuer) 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 Issuer Common Shares (other than as a result of purchases of
such securities from the Issuer) and publicly discloses a possible
intention to seek control of the Issuer or to engage in a transaction that
would result in a "Change of Control" (as defined in the Standstill
Agreement) of the Issuer 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 Issuer Common Stock
pursuant to (x) a tender or exchange offer for any and all outstanding shares of
Issuer Common Stock or (y) a Business Combination Proposal (as defined below)
for the Issuer so long as (A) such proposal is made in writing delivered only to
the executive committee of the Issuer's Board of Directors (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 tender or exchange offer
referred to in clause (i) has been terminated, (y) the Third Party referred to
in clauses (ii) or (iii) has reduced its beneficial ownership below 25% or 20%,
respectively, of the outstanding Issuer Common Shares or (z) the Third Party
referred to in clause (iii) has publicly altered or modified its prior
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public disclosure to provide that it intends to hold the shares acquired for
investment purposes and not with the intention to seek control of the Issuer or
to engage in a transaction that would result in a Change of Control of the
Issuer, 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 will be reinstated at the Permitted Ownership Percentage in effect
prior to the termination of the Acquisition Restrictions. "Business Combination
Proposal" means any proposal with respect to a merger or consolidation in which
the Issuer is a constituent corporation or a sale, lease, exchange or mortgage
of all or substantially all of the assets of the Issuer and its subsidiaries
taken as a whole and pursuant to any of which transactions all of the Issuer
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,
in certain circumstances, a tender or exchange offer for any and all of the
outstanding Issuer Common Shares. Any Business Combination Proposal submitted
by BNP pursuant to the Standstill Agreement is required to be a proposal for the
acquisition of not less than 100% of the issued and outstanding Issuer Common
Shares (other than those which are beneficially owned by BNP and its
affiliates).
BNP may exchange, at its option, any shares of Common Stock acquired by it
pursuant to the provisions described above for shares of Class A Common Stock.
Post-Standstill Provisions. The Standstill Agreement provides, that,
following the expiration of the Standstill Period and until either (i) the
Ownership Percentage is less than 10% or (ii) BNP has consummated a Business
Combination Proposal pursuant to the procedures described in this paragraph or a
tender or exchange offer in which it has acquired at least 90% of the
outstanding Issuer Common Shares (the "Post-Standstill Period"), neither BNP nor
any of its affiliates may (except as provided below) (i) take any action
resulting in a majority of the Issuer's Board of Directors being BNP nominees or
otherwise not constituting Independent Directors (as defined below), (ii)
increase its beneficial ownership of Equity Securities so that its Ownership
Percentage becomes greater than its Permitted Ownership Percentage on the date
the Standstill Period terminated, or (iii) take any other action that could
result in an increase in the Ownership Percentage or other material transactions
between the Issuer and BNP or its affiliates.
Notwithstanding the foregoing restrictions, during the Post-Standstill
Period, BNP may submit a Business Combination Proposal (including a tender or
exchange offer for all the outstanding Issuer Common Shares) to the Executive
Committee on a confidential basis, whereupon the Executive Committee must
promptly retain an independent investment banking firm and outside legal counsel
(whose fees will be borne by the Issuer) to assist the Executive Committee in
its review of the proposal. 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 Issuer (other than BNP and its affiliates),
or concludes that it is inadequate, then BNP will be required to withdraw such
Business Combination Proposal and may not submit another Business Combination
Proposal to the Issuer pursuant to this provision for a period of twelve months
from the date on which such independent investment banking firm reached such
conclusion. See "--Exceptions to Standstill Provisions" below. If the
independent investment banking firm concludes that the Business Combination
Proposal is fair and adequate, then the Executive Committee will cause the
proposal to be submitted to the full Board of Directors of the Issuer for
consideration. If a majority of the Independent Directors on the Issuer's Board
of Directors 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
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<PAGE>
contemplated by such Business Combination Proposal is not in the best interests
of all of the Issuer's stockholders at that time, then BNP will be required to
withdraw such Business Combination Proposal and may not submit another Business
Combination Proposal to the Issuer pursuant to this provision for a period of
twelve months from the date on which the Independent Directors made such
conclusion. See "--Exceptions to Standstill Provisions" below. Approval of such
Business Combination Proposal by the Issuer's Board of Directors will require
the affirmative vote of a majority of the Independent Directors then on the
Issuer's Board of Directors (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 Issuer's Board of Directors (including a majority of the Independent
Directors of the Issuer's Board of Directors) may determine to be appropriate in
the circumstances. If within the Market Check Period the Issuer 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
Issuer's Board of Directors (including a majority vote of the Independent
Directors)), the Issuer will be required to 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 Issuer's Board of Directors (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 Issuer's Board of
Directors may cause the Issuer to enter into an agreement for such Superior
Proposal and recommend acceptance thereof to the stockholders of the Issuer. In
such event, BNP has agreed that it will, and will cause each of its affiliates
to, in connection with any vote or action by written consent of the stockholders
of the Issuer 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 Issuer's Board of Directors 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 Issuer does not receive a Superior Proposal
during the Market Check Period, then the Issuer 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; provided that the Issuer's Board of Directors has received a
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 Issuer 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 will terminate
and BNP may not submit another such proposal under this provision for twelve
months following the date such proposal is first submitted by the Executive
Committee to the Issuer's Board of Directors for consideration. The Standstill
Agreement provides that following the execution of a definitive agreement with
the Issuer, BNP is not required to 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 Issuer or made by any Third Party.
"Independent Director" means 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.
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<PAGE>
Other Standstill Provisions. In addition to the limitations on
acquisitions of securities, in the Standstill Agreement, BNP has agreed that
during the Standstill Period, neither it nor any of its affiliates will:
(i) initiate, propose or otherwise solicit securityholders of
the Issuer 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 Issuer's Board of Directors (other than a
nominee for a Class A Director (a "Class A Nominee")) or seek removal of
any member of the Issuer's Board of Directors (other than a Class A
Director);
(ii) (A) 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 Issuer 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 Issuer or in any increase in the
Ownership Percentage beyond the then existing Ownership Percentage (any
such action described in this clause (A), a "Issuer Transaction Proposal"),
(B) seek to exercise any control or influence over the management of the
Issuer or the Issuer's Board of Directors or any of the businesses,
operations or policies of the Issuer (other than solely by virtue of
representation on the Issuer's Board of Directors and participation in
meetings and other actions of the Issuer's Board of Directors and any duly
constituted committee thereof or by informal meetings or consultations with
members of the Issuer's Board of Directors 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, the Standstill Agreement,
or (D) present to the Issuer, its stockholders or any third party any
proposal constituting or that can reasonably be expected to result in a
Issuer 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 Issuer Transaction Proposal or in an
increase in the Ownership Percentage or take any action that might require
the Issuer to make a public announcement regarding any such Issuer
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 Issuer 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 Exchange Act) in opposition to the
recommendation or proposal of the Issuer's Board of Directors, or recommend
or request or induce or attempt to induce any
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<PAGE>
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 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 Issuer;
(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 (as defined in the Exchange Act)
with respect to Equity Securities, 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 Issuer or an
increase in the Ownership Percentage or otherwise seek to circumvent any of
the limitations set forth in (i) - (vi) above; or
(viii) request, or induce or encourage any other person to
request, that the Issuer amend or waive any of the provisions of the
Standstill Agreement.
The obligations of BNP and its affiliates described in this paragraph will
terminate upon the termination of the Acquisition Restrictions as described
above under "--Early Release from Standstill Provisions" above in order to
permit BNP to make the Business Combination Proposal or the tender or exchange
offer described therein.
During the Post-Standstill Period, BNP may contact or respond to contacts
from other stockholders of the Issuer regarding the business and affairs of the
Issuer on a confidential basis, but, for the first four years of the Post-
Standstill Period, BNP will not, and will not permit any of its affiliates to,
either directly or through others (i) solicit, finance or become a participant
in a solicitation of proxies or written consents, (A) for the election of Non-
Class A Directors of the Issuer, (B) for any stockholder proposal opposed by the
Issuer's Board of Directors, or (C) against any proposal submitted to the
stockholders and recommended by the Issuer's Board of Directors, (ii) make or
submit any proposal to the Issuer's stockholders opposed by the Issuer's Board
of Directors, (iii) make any public statement as to any intention or plan to
take actions not consistent with the then-applicable terms of the Standstill
Agreement, (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 (as defined in the
Exchange Act) with the objective or effect of effecting a Change of Control of
the Issuer, (vi) take any action inconsistent with the procedures described
above under "--Post Standstill Provisions," or (vii) publicly request or
encourage others to request that the Issuer waive any of the then-applicable
provisions or limitations contained in the Standstill Agreement.
Exceptions to Standstill Provisions. Notwithstanding the restrictions
described above, under the Standstill Agreement BNP may at any time submit a
Business Combination Proposal for the Issuer 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
Issuer 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. The Standstill Agreement
provides that the Executive Committee will be under no obligation to BNP or
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its affiliates to accept such Business Combination Proposal or to cause such
Business Combination Proposal to be submitted to the full Board of Directors of
the Issuer for consideration.
In addition, (i) if part of the agenda of any meeting of the Issuer's Board
of Directors or any committee thereof includes the review any proposal submitted
by a Third Party with respect to a Issuer Transaction Proposal which would
result in a Change of Control of the Issuer, or (ii) if the Issuer's Board of
Directors or any committee thereof determines to solicit proposals for such a
transaction from Third Parties, the Issuer will be required, subject to certain
limited exceptions, to give prompt written notice of such determination to BNP
and provide BNP with a reasonable opportunity to, in the case of clause (i),
participate as a potential bidder prior to accepting such Third Party proposal
or, in the case of clause (ii), participate in the solicitation process as a
potential bidder.
Transfer Restrictions and Related Provisions
--------------------------------------------
Transfer Restrictions. Under the Standstill Agreement, BNP has agreed
that, for a period of eighteen months after the Closing Date, neither BNP nor
its affiliates will Transfer any Equity Securities except Transfers to its
affiliates. After such eighteen month period and prior to the second
anniversary of the Closing Date, neither BNP nor its affiliates will Transfer
any Equity Securities except (i) to an affiliate or (ii) pursuant to a Rule 144
Sale.
Following the second anniversary of the Closing Date, the Standstill
Agreement provides that neither BNP nor its affiliates will Transfer any Equity
Securities except for Transfers: (i) pursuant to a Commission-registered
underwritten offering in which no more than 2% of the outstanding Issuer Common
Shares is Transferred to any person or group (a "Public Offering"), (ii)
pursuant to the restrictions of Rule 144 under the Securities Act of 1933, as
amended (the "Securities Act"), applicable to sales of securities by affiliates
of an issuer (regardless of whether BNP or its affiliates is deemed at such time
to be an affiliate of the Issuer) (a "Rule 144 Sale"), (iii) to an affiliate of
BNP which agrees in writing with the Issuer to be bound by the Standstill
Agreement as fully as if it or they were an initial signatory thereto, (iv)
pursuant to a tender or exchange offer by a Third Party that is not rejected by
the Issuer's Board of Directors within the time period prescribed by the
Exchange Act and the rules and regulations promulgated by the Commission
thereunder, (v) of up to 4.9% of the outstanding Issuer Common Shares to any one
institutional investor (a "Privately-Negotiated Sale") 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 Issuer and which
purchases such shares pursuant to an exemption from the registration
requirements of the Securities Act, and (B) provides appropriate certification
to the Issuer 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 (a "Block Sale") to any one or more institutional investors (but not
more than 20% of the then-outstanding Issuer Common Shares to any one bank
holding company, as such term is defined under applicable banking regulations,
or foreign bank or foreign banking organization, as such terms are defined under
applicable banking regulations) who are reasonably acceptable to the Issuer's
Board of Directors (such approval not to be unreasonably withheld or delayed)
and who agree in writing with the Issuer to be bound by the then-applicable
provisions of the Standstill Agreement as fully as if it or they were an initial
signatory thereto (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 the
Standstill Agreement; provided (x) that such pledge is made to a person who is a
Qualified Transferee pursuant to clause (vi) above (a "Qualified
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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 the Standstill Agreement as fully as if it was an
initial signatory thereto. Any Transfer pursuant to clauses (i), (v) or (vi) of
the preceding sentence will be subject to the Issuer's right of first refusal
described below.
Right of First Refusal. The Standstill Agreement provides that, prior to
any Transfer that is subject to the Issuer's right of first refusal described
above, BNP and/or its affiliates proposing to effect such Transfer (the
"Transferring Party") is required to deliver written notice (the "Transfer
Notice") to the Issuer specifying (i) the person to whom the Transferring Party
proposes to make such Transfer (in the case of a Privately-Negotiated Sale or a
Block Sale) 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 price per share or other security determined in the
manner set forth in the Standstill Agreement (the "Offer Price"), 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 Issuer may elect to purchase all (but
not less than all) the Equity Securities that are the subject of the Transfer
Notice for cash at the Offer Price and upon the other financial and economic
terms and conditions specified in the Transfer Notice. If the Issuer elects to
purchase the offered Equity Securities, it must give notice to the Transferring
Party within 15 business days of its receipt of the Transfer Notice of its
election, which notice must include the date set for the closing of such
purchase, which date may not be 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. The Issuer may assign its rights to
purchase the Equity Securities to another person, in certain circumstances, as
set forth in the Standstill Agreement. If the Issuer 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 may complete the
proposed Transfer (to the same proposed transferee, in the case of a Privately-
Negotiated Sale or a Block Sale) on terms no less favorable to the Transferring
Party than those set forth in the Transfer Notice and such Transfer must be
completed within the time periods specified in the Standstill Agreement.
Voting of Shares by the Reporting Person
----------------------------------------
The Standstill Agreement provides that BNP and its affiliates may vote any
Voting Securities beneficially owned by them as they may elect in their sole
discretion on all matters other than the election of directors (other than Class
A Directors), in which case, as long the Acquisition Restrictions have not
terminated as described under "Standstill and Related Provisions--Early Release
from Standstill Provisions" above, BNP and its affiliates must vote any Voting
Securities beneficially owned by them in the same proportion as the stockholders
of the Issuer other than BNP and its affiliates vote.
Committees
----------
The Standstill Agreement requires the Issuer to cause each committee of the
Board of Directors to, subject to requirements under the Exchange Act or
applicable securities exchanges or markets, include at the request of BNP a
number of Class A Directors proportionate to the Ownership Percentage, for so
long as the Ownership Percentage is at least 20%, except that BNP will not be
entitled to designate a majority of any committee.
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BOARD SUPERMAJORITY REQUIRED FOR CERTAIN ACTIONS
The Issuer adopted Amended and Restated By-Laws (the "Amended and Restated
By-Laws") in connection with the consummation of the Merger Agreement and the
transactions contemplated thereby. The following summary of certain provisions
of the Amended and Restated By-Laws is qualified in its entirety by reference to
the copy of the Amended and Restated By-Laws attached as Exhibit 3(ii) to the
Issuer's Current Report and incorporated herein by reference.
The Amended and Restated By-Laws provide, among other things, that
notwithstanding that a lesser vote or no vote of the Board of Directors (or a
committee thereof) may be required by law or the Amended and Restated
Certificate of Incorporation, and in addition to any other vote of the Board of
Directors (or a committee thereof) required by law or the Amended and Restated
Certificate of Incorporation, the affirmative vote of two-thirds of the
directors constituting the authorized number of Board of Directors will 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 (determined in
accordance with the Amended and Restated By-Laws) thereof equals or exceeds
10% of the total of all amounts that are included under stockholders'
equity of the Issuer (as shown on its most recent financial statements) as
of the date of any such action of the Board of Directors;
(ii) any repurchase or redemption of outstanding equity securities of
the Issuer 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 total of all amounts that are
included under stockholders' equity of the Issuer (as shown on its most
recent financial statements) as of the date of any such action by the Board
of Directors; and
(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).
As long as BNP continues to own a substantial amount of Class A Common
Stock, the taking of any action described above will require the concurrence of
at least some of the Class A Directors nominated by BNP.
REGISTRATION RIGHTS AGREEMENT
The Issuer and BNP entered into a Registration Rights Agreement effective
as of the Closing Date (the "Registration Rights Agreement") in connection with
the consummation of the Merger Agreement and the transactions contemplated
thereby. The following summary of the Registration Rights Agreement is
qualified in its entirety by reference to the copy of the Registration Rights
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Agreement attached as Exhibit 4(ii) to the Issuer's Current Report and
incorporated herein by reference.
The Registration Rights Agreement contains customary terms and conditions
which provide, among other things, that commencing two years after the Closing
Date, BNP will have the right to require the Issuer to use its best efforts to
register under the Securities Act Registrable Securities (as defined below) for
resale in up to five demand registrations and an unlimited number of incidental
registrations, provided that the aggregate number of demand and incidental
registration requests by BNP may not exceed three in any 12-month period and no
more than two demand registrations may be requested in any 12-month period. For
purposes of the Registration Rights Agreement, "Registrable Securities" means:
(x) the shares of 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.
The Issuer will pay all registration expenses in connection with each
registration of Registrable Securities pursuant to the Registration Rights
Agreement.
BNP's registration rights are subject to the following additional
limitations: (i) the Issuer may limit the number of shares to be included in any
underwritten offering if, in the judgment of the managing underwriter for such
offering, the number of shares to be offered exceeds the number of shares that
can be offered without jeopardizing the success of the offering (provided that
any such reduction must be pro rata); (ii) the Issuer may defer filing a
registration statement (or suspend sales pursuant to an effective registration
statement) for up to 60 consecutive days (but not more than 120 days in any
twelve-month period) if it would require the Issuer to disclose confidential
information which, in the judgment of the Issuer's Board of Directors, would be
harmful to disclose, or if such registration and distribution would adversely
affect a share repurchase program of the Issuer; and (iii) BNP will agree to
suspend offers and sales of the Common Stock following the commencement of a
Commission-registered offering of Common Stock by the Issuer for a period of
time not to exceed 120 days following the commencement of the offering. The
Issuer will be required to suspend its own sales of Common Stock for up to 45
days when BNP is selling shares pursuant to the demand registration rights
provisions.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
- ------- --------------------------------
Exhibit 1 - Joint Filing Agreement
Exhibit 2 - Amended and Restated Certificate of Incorporation of the Issuer.
Exhibit 3 - Standstill and Governance Agreement, dated as of November 1, 1998,
between the Issuer and BNP.
Exhibit 4 - Amended and Restated By-Laws of the Issuer.
Exhibit 5 - Registration Rights Agreement, dated as of November 1, 1998,
between the Issuer and BNP.
-16-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 6, 1998
BANQUE NATIONALE DE PARIS FRENCH AMERICAN BANKING CORPORATION
By: /s/ Vivien Levy-Garboua By: /s/ Patrick Saurat
---------------------------- -------------------------------
Name: Vivien Levy-Garboua Name: Patrick Saurat
Title: Directeur General Delegue Title: Executive Vice President
-17-
<PAGE>
SCHEDULE I
----------
DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSON
The names, present principal occupations and business addresses of the
directors and executive officers of the Reporting Person are set forth below.
If no address is given, the director's or executive officer's business address
is that of the principal executive offices of BNP or FABC, as applicable. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to BNP or FABC, as applicable.
DIRECTORS OF BNP
Name and
- --------
Business Address Principal Occupation Citizenship
- ---------------- -------------------- -----------
Michel Pebereau Chairman and Chief Executive Officer France
Patrick Auguste Executive France
Banque Nationale de Paris
33/35, avenue de Lowendal
75015 Paris
France
Jean-Louis Beffa Chairman and Chief Executive Officer, France
Compagnie de Saint-Gobain Saint-Gobain
"Les Miroirs"
18, avenue d'Alsace
92060 Paris-La Defense
France
Jacques Friedmann Chairman of the Supervisory Board, France
AXA-UAP AXA-UAP
9, Place Vendome
75001 Paris
France
Jean Gandois Chairman of the Board, France
Cockerill-Sambre Cockerill-Sambre (Belgium)
Chaussee de la Hulpe, 187
1170 Brussels
Belgium
Jean-Marie Gianno Employee France
Banque Nationale de Paris
2, Boulevard Victor Hugo
06000 Nice
France
-18-
<PAGE>
Philippe Jaffre Chairman and Chief Executive Officer, France
Elf Aquitaine Elf Aquitaine
Tour ELF
2, Place de la Coupole
92078 Paris-La Defense
France
Alain Joly Chairman and Chief Executive Officer, France
L'Air Liquide L'Air Liquide
75, Quai d'Orsay
75007 Paris
France
Philippe Mussot Employee France
Banque Nationale de Paris
1, Place de la Republique
72000 Le Mans
France
Lindsay Owen-Jones Chairman and Chief Executive Officer, England
L'Oreal L'Oreal
41, rue Martre
92117 Clichy
France
David Peake Chairman of the Board, BNP-UK England
BNP-UK Holdings Limited Holdings Limited
8-13 King William Street
P.O. Box 416
London EC4P 4 HS
England
Juergen Sarrazin Former Chairman of the Board, Germany
Dresdner Bank Dresdner Bank
Jurgen-Ponto-Platz 1
60301 Frankfurt
Germany
Louis Schweitzer Chairman and Chief Executive Officer, France
Renault Renault
34, Quai du Point du Jour
92100 Boulogne-Billancourt
France
Rene Thomas Honorary Chairman France
Jacques-Henri Wahl Adviser to the Chairman France
-19-
<PAGE>
EXECUTIVE OFFICERS OF BNP
Name and
- --------
Business Address Principal Occupation Citizenship
- ---------------- ------------------------------------- -----------
Michel Pebereau Chairman and Chief Executive Officer France
Baudouin Prot President and Chief Operating Officer France
Georges Chodron de Courcel Group Executive Vice President France
Vivien Levy-Garboua Group Executive Vice President France
Christian Aubin Adviser to the Chairman France
Jean-Francois Lepetit Adviser to the Chairman; France
Executive Vice President,
Asset/Liability Management
Jacques-Henri Wahl Adviser to the Chairman France
Bernard Lemee Senior Executive Vice President, France
Human Resources
Alain Moynot Senior Executive Vice President, France
Domestic Network
Philippe Bordenave Chief Financial Officer France
Jacques Desponts Executive Vice President, France
International Trade Finance
Herve Gouezel Executive Vice President, France
Organization and Information
Services
Michel Konczaty Executive Vice President, France
Structured Finance
Marc Lavergne Executive Vice President, France
Management Audit and
Inspection
Yves Martrenchar Executive Vice President, France
Products and Markets
-20-
<PAGE>
Michel Passant Executive Vice President, France
Operational and Technical
Support
Claude Porcherot Executive Vice President, France
Subsidiaries and Real Estate
Ervin Rosenberg Executive Vice President, France
Large Corporations and
Institutions
Edouard Sautter Executive Vice President, France
Risk Policy and Industry Research
Jean Thomazeau Executive Vice President, France
Banks and Risks
Laurent Treca Executive Vice President, France
Business Development
-21-
<PAGE>
DIRECTORS OF FABC
Name and
- --------
Business Address Principal Occupation Citizenship
- ---------------- -------------------- -----------
Bruno di Nardo Senior Vice President, United States
Banque Nationale de Paris BNP (N.Y.) of America
499 Park Avenue
New York, New York 10022
Patrick Saurat Executive Vice President, FABC; France
Banque Nationale de Paris Executive Vice President,
499 Park Avenue BNP (N.Y.)
New York, New York 10022
Pierre Schneider President, FABC; France
Banque Nationale de Paris General Manager, BNP (N.Y.)
499 Park Avenue
New York, New York 10022
Jacques-Henri Wahl Adviser to the Chairman of BNP France
Banque Nationale de Paris
16, Boulevard des Italiens
75009 Paris
France
-22-
<PAGE>
EXECUTIVE OFFICERS OF FABC
Name and
- --------
Business Address Principal Occupation Citizenship
- ---------------- -------------------- -----------
Pierre Schneider President, FABC;
General Manager, BNP (N.Y.) France
Jean-Pierre Beck Executive Vice President, FABC; France
Executive Vice President, BNP (N.Y.)
Michel DeVries Executive Vice President, FABC; France
Executive Vice President, BNP (N.Y.)
Louis Deglaire Executive Vice President, FABC; France
Executive Vice President, BNP (N.Y.)
Patrick Saurat Executive Vice President, FABC; France
Executive Vice President, BNP (N.Y.)
-23-
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
1. Joint Filing Agreement
2. Amended and Restated Certificate of Incorporation of the Issuer
(incorporated by reference to Exhibit 3(i) to the Issuer's Current
Report on Form 8-K filed with the Commission on November 5, 1998).
3. Standstill and Governance Agreement, dated as of November 1, 1998,
between the Issuer and the Reporting Person (incorporated by reference
to Exhibit 4(i) to the Issuer's Current Report on Form 8-K filed with
the Commission on November 5, 1998).
4. Amended and Restated By-Laws of the Issuer (incorporated by reference
to Exhibit 3(ii) to the Issuer's Current Report on Form 8-K filed with
the Commission on November 5, 1998).
5. Registration Rights Agreement, dated as of November 1, 1998, between
the Issuer and the Reporting Person (incorporated by reference to
Exhibit 4(ii) to the Issuer's Current Report on Form 8-K filed with
the Commission on November 5, 1998).
-24-
<PAGE>
EXHIBIT 1
---------
JOINT FILING AGREEMENT
----------------------
In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934,
as amended, the undersigned hereby agree to the joint filing with each other of
the attached statement on Schedule 13D and all amendments to such statement and
that such statement and all amendments to such statement is made on behalf of
each of them.
IN WITNESS WHEREOF, the undersigned hereby execute this agreement as of
this 6th day of November, 1998.
BANQUE NATIONALE DE PARIS FRENCH AMERICAN BANKING CORPORATION
By: /s/ Vivien Levy-Garboua By: /s/ Patrick Saurat
---------------------------- ---------------------------
Name: Vivien Levy-Garboua Name: Patrick Saurat
Title: Directeur General Delegue Title: Executive Vice President
-25-
