<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25, 2000
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<S> <C> <C>
BANCWEST CORPORATION DELAWARE 99-0156159
BANCWEST CAPITAL I DELAWARE 99-0351988
BANCWEST CAPITAL II DELAWARE 99-0351989
(EXACT NAME OF EACH REGISTRANT (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
AS SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) NUMBER)
</TABLE>
999 BISHOP STREET
HONOLULU, HAWAII 96813
(808) 525-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
------------------------
WILLIAM E. ATWATER, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
BANCWEST CORPORATION
999 BISHOP STREET
HONOLULU, HAWAII 96813
(808) 525-7000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
LEE MEYERSON, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3954
TELEPHONE: (212) 455-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the registration statement becomes effective as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
----------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
----------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED OFFERING PRICE (2)(3)(4) AMOUNT OF REGISTRATION FEE(5)
<S> <C> <C>
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Capital Securities of the trusts(1).......................
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Guarantees of BancWest Corporation of Capital Securities
issued by the trusts and certain back-up
obligations(6)..........................................
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Junior Subordinated Debentures of BancWest
Corporation(7)..........................................
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Total..................................................... $300,000,000 $79,200
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</TABLE>
(1) The "trusts" refers to BancWest Capital I and BancWest Capital II.
(2) Pursuant to General Instruction II.D to Form S-3, the Proposed Maximum
Aggregate Offering Price has been omitted for each class of securities but
has been listed for the aggregate amount of all securities registered
hereby.
(3) If any securities are issued at an original issue discount, then such
greater amount as shall result in aggregate proceeds of $300,000,000.
(4) The amount in the table has been estimated solely for purposes of
calculating the registration fee.
(5) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended (the "Securities Act").
(6) Includes the rights of holders of the capital securities under any
guarantees and certain back-up undertakings, comprised of the obligations of
BancWest Corporation to provide certain indemnities in respect of, and pay
and be responsible for, certain costs, expenses, debts and liabilities of
each of the trusts, other than with respect to the capital securities and
common securities of such trust, and such obligations of BancWest
Corporation as set forth in the amended and restated declaration of trust of
each trust and the indenture, in each case as further described in the
registration statement. The guarantees, when taken together with BancWest
Corporation's obligations under the related junior subordinated debentures,
the indenture and the related amended and restated declaration of trust,
will provide a full and unconditional guarantee on a subordinated basis by
BancWest Corporation of payments due on the capital securities. No separate
consideration will be received for any Guarantees or any such back-up
obligations.
(7) The junior subordinated debentures to be issued by BancWest Corporation and
which are covered by this registration statement will be exchanged by
BancWest Corporation for the corresponding series of capital securities. The
junior subordinated debentures may be distributed later, without additional
consideration, to the holders of each applicable series of capital
securities of each of the trusts if the respective trusts are dissolved and
their assets are distributed to the respective holders of such capital
securities.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities, and we are not
soliciting offers to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 25, 2000
PROSPECTUS
$300,000,000
BANCWEST CAPITAL I
BANCWEST CAPITAL II
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED TO THE EXTENT DESCRIBED HEREIN BY
BANCWEST CORPORATION
------------------------
These securities may be offered from time to time, in amounts, on terms and at
prices that will be determined at the time they are offered for sale, These
terms and prices will be described in more detail in one or more supplements to
this prospectus, which will be distributed at the time the securities are
offered.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU INVEST.
------------------------
THIS PROSPECTUS MAY NOT BE USED TO SELL ANY OF THE SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
------------------------
The securities may be sold to or through underwriters, through dealers or
agents, directly to purchasers or through a combination of these methods. If an
offering of securities involves any underwriters, dealers or agents, then the
applicable prospectus supplement will name the underwriters, dealers or agents
and will provide information regarding any fee, commission or discount
arrangements made with those underwriters, dealers or agents.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated , 2000
<PAGE> 3
TABLE OF CONTENTS
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PAGE
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About This Prospectus................. 1
Where You Can Find More Information
About BancWest Corporation.......... 2
Summary............................... 3
BancWest Corporation.................. 4
The Trusts............................ 4
Use Of Proceeds....................... 5
Ratio Of Earnings To Fixed Charges.... 5
Accounting Treatment.................. 5
</TABLE>
<TABLE>
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PAGE
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Description Of The Preferred
Securities.......................... 6
Description Of The Guarantees......... 12
Description Of The Junior Subordinated
Debentures.......................... 15
Book-Entry Issuance................... 23
ERISA Matters......................... 26
Plan Of Distribution.................. 26
Legal Opinions........................ 27
Experts............................... 27
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that BancWest
Corporation, BancWest Capital I and BancWest Capital II have filed with the SEC
using a "shelf" registration process. Under this shelf process, we may issue our
junior subordinated debentures to one of the trusts in exchange for preferred
securities of the trust. We may then sell those preferred securities, guaranteed
by the related guarantees of BancWest Corporation, as described in this
prospectus, in one or more offerings up to a total dollar amount of
$300,000,000. This prospectus provides you with a general description of the
capital securities of BancWest Capital I and BancWest Capital II, which we refer
to as the trusts, and the related guarantees and junior subordinated debentures.
Each time preferred securities of a trust are being sold, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. References to this prospectus or the
prospectus supplement also mean the information contained in other documents we
have filed with the SEC and have referred you to in this prospectus. If this
prospectus is inconsistent with the prospectus supplement, you should rely on
the prospectus supplement. You should read both this prospectus and any
prospectus supplement together with any additional information that we refer you
to as discussed under "Where You Can Find More Information About BancWest
Corporation."
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<PAGE> 5
WHERE YOU CAN FIND MORE INFORMATION ABOUT
BANCWEST CORPORATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document which we file at
the SEC's public reference rooms in Washington, D.C., New York, New York,
Chicago, Illinois and Denver, Colorado. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" in this prospectus the
information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934 until we sell all of the
Preferred Securities:
- Annual Report on Form 10-K for the year ended December 31, 1999, as amended;
and
- Quarterly Report on Form 10-Q for the quarters ended March 31, 2000 and June
30, 2000.
You may request a copy of these filings at no cost, by writing or
telephoning BancWest Corporation, William E. Atwater, Secretary, 999 Bishop
Street, Honolulu, Hawaii 96813, telephone (808) 525-8145.
This prospectus does not contain or incorporate by reference any separate
financial statements of the trusts. We do not believe that these financial
statements are required because:
- all of the voting securities of the trusts will be owned, directly or
indirectly, by us, a reporting company under the Securities Exchange Act of
1934;
- the trusts have no independent operations but exist for the sole purpose of
issuing securities representing undivided beneficial ownership interests in
their respective assets in exchange for junior subordinated debentures issued
by us; and
- the obligations of the trusts under the preferred securities are guaranteed by
us to the extent described in this prospectus.
As such, the trusts are not subject to the informational reporting requirements
of the Securities Exchange Act of 1934.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
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SUMMARY
Each of the trusts is a business trust recently organized under Delaware
law by us. They may each issue to us one series of their preferred securities
which we may offer, at prices and on terms to be determined at the time of sale.
Each trust will issue only one series of preferred securities. The preferred
securities will represent undivided beneficial ownership interests in the assets
of the applicable trust. Unless the applicable prospectus supplement states
otherwise, holders of preferred securities will receive cash distributions on a
periodic basis and payments on liquidation, redemption or otherwise of the
preferred securities as described in the applicable prospectus supplement.
The preferred securities will be guaranteed on a subordinated basis by us
to the extent described in this prospectus and the applicable prospectus
supplement. Our obligations under the guarantees will be subordinated to the
same extent as our obligations under the junior subordinated debentures.
When a trust issues a series of its preferred securities to us, it will
also issue to us a series of common securities. The trust will issue the
preferred securities and common securities to us in exchange for a corresponding
series of our junior subordinated debentures. The junior subordinated debentures
held by the applicable trust may be distributed subsequently on a proportionate
basis to holders of preferred securities and common securities if that trust
were to be dissolved. The trust may be dissolved subject to certain conditions
that will be described in an accompanying prospectus supplement.
Each guarantee, when taken together with our obligations under the
corresponding series of junior subordinated debentures, the indenture under
which the junior subordinated debentures will be issued and the relevant
declaration of trust, including our obligations to pay the costs, expenses,
debts and liabilities of each trust (other than regarding the preferred
securities and the common securities of the trust), will constitute a full and
unconditional guarantee on a subordinated basis by us of all payments due on the
preferred securities and common securities.
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BANCWEST CORPORATION
We are a bank holding company headquartered in Honolulu, Hawaii, with an
administrative headquarters in San Francisco, California. Our principal
subsidiaries are two full-service community banks, Bank of the West,
headquartered in San Francisco, California, and Hawaii-based First Hawaiian
Bank.
At September 30, 2000, we had total assets of $18.0 billion, loans of $13.6
billion, deposits of $13.8 billion and shareholders' equity of $1.9 billion.
CONTACT INFORMATION
Our executive offices are located at 999 Bishop Street, Honolulu, Hawaii
96813 and our Investors Relations telephone number is (808) 525-7086.
THE TRUSTS
PURPOSE AND OWNERSHIP OF THE TRUSTS
Each of the trusts is a business trust recently organized under Delaware
law by us and the trustees of the trusts. The trusts are being established
solely for the following purposes:
- to issue to us, in exchange for our junior subordinated debentures, the
preferred securities which represent undivided beneficial ownership interests
in the assets of each trust;
- to issue the common securities to us in exchange for our junior subordinated
debentures in a total liquidation amount equal to 3% of the total capital of
each trust; and
- to engage in other activities that are directly related to the activities
described above, such as registering the transfer of the preferred securities.
Because each trust is being established only for the purposes listed above,
the applicable series of junior subordinated debentures will be the sole assets
of the applicable trust, and payments under the junior subordinated debentures
will be the sole source of income to that trust.
As issuer of the junior subordinated debentures, we will pay:
- all fees, expenses and taxes related to each trust and the offering of each
trust's preferred securities and common securities; and
- all ongoing costs, expenses and liabilities of the trusts, except obligations
to make distributions and other payments on the common securities and the
preferred securities.
For so long as the preferred securities remain outstanding, we will promise
to:
- cause each trust to remain a business trust and not to voluntarily dissolve,
wind-up, liquidate or be terminated, except as permitted by the relevant
declaration of trust;
- own directly or indirectly all of the common securities;
- use our commercially reasonable efforts to ensure that each trust will not be
an "investment company" for purposes of the Investment Company Act of 1940;
and
- take no action that would be reasonably likely to cause either trust to be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.
THE TRUSTEES
Each of the trust's business and affairs will be conducted by its five
trustees. In each case, the three administrative trustees of each trust will be
individuals who are our employees. The property trustee of each trust will hold
title to the junior subordinated debentures for the benefit of the holders of
the preferred securities of each trust and will have the power to execute all
rights and powers of a registered holder of junior subordinated debentures under
the indenture. The Delaware trustee will maintain its principal place of
business in Delaware and meet the requirements of Delaware law for Delaware
business trusts.
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We have the sole right to appoint, remove and replace any of the trustees
of each trust unless an event of default occurs under the indenture. In that
event, the holders of a majority in liquidation amount of the applicable
preferred securities will have the right to remove and appoint the property
trustee and the Delaware trustee.
ADDITIONAL INFORMATION
For additional information concerning the particular trust issuing a series
of preferred securities, see "The Trust" in the applicable prospectus
supplement. We anticipate that the trusts will not be required to file any
reports with the SEC after the issuance of the preferred securities. As
discussed below under the caption "Accounting Treatment", we will provide
certain information concerning each of the trusts and the preferred securities
in the financial statements included in our own periodic reports to the SEC.
OFFICES OF THE TRUSTS
The executive office of each trust is c/o BancWest Corporation, 999 Bishop
Street, Honolulu, Hawaii 96813, Attention: General Counsel, and its telephone
number is (808) 525-7738.
USE OF PROCEEDS
Except as otherwise may be described in a prospectus supplement
accompanying this prospectus, we expect to use the proceeds from the sale of the
preferred securities for general corporate purposes, which may include the
repayment of debt, investments in or extensions of credit to our subsidiaries
and the financing of possible acquisitions.
RATIOS OF EARNINGS TO FIXED CHARGES
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NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
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2000 1999 1999 1998 1997 1996 1995
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Earnings to fixed charges:
Excluding interest on
deposits................... 4.07x 4.03x 4.17x 2.92x 2.88x 2.58x 2.31x
Including interest on
deposits................... 1.66x 1.63x 1.64x 1.44x 1.47x 1.45x 1.45x
</TABLE>
For purposes of computing the consolidated ratios of earnings to fixed
charges, earnings represent income before income taxes and fixed charges. Fixed
charges, excluding interest on deposits, include interest (other than on
deposits), whether expensed or capitalized, and that portion of rental expense
(generally one third) deemed representative of the interest factor. Fixed
charges, including interest on deposits, consist of the foregoing items plus
interest on deposits.
ACCOUNTING TREATMENT
For financial reporting purposes, each trust will be treated as a
subsidiary of ours, and, accordingly, the accounts of each trust will be
included in our consolidated financial statements. The capital securities will
be presented as part of debt and capitalized lease obligations in the
consolidated statement of financial condition. Appropriate disclosure about the
junior subordinated debentures and the guarantee will be included in the notes
to the consolidated financial statements. For financial reporting purposes, we
will record distributions payable on the capital securities as interest expense
in the consolidated statement of income.
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DESCRIPTION OF THE PREFERRED SECURITIES
The following description of the terms and provisions of preferred
securities summarizes certain general terms that will apply to each series of
preferred securities. This description is not complete, and we refer you to the
certificate of trust and the declaration of trust for each trust and the form of
the amended and restated declaration of trust, copies of which we filed as
exhibits to the registration statement of which this prospectus is a part.
DECLARATION OF TRUSTS
When a trust issues a series of preferred securities, the declaration of
trust relating to that trust will contain, and the prospectus supplement
relating to that series will summarize, the terms and other provisions relating
to that series of preferred securities. Each trust will issue only one series of
preferred securities.
The declaration of trust of each trust will be qualified as an indenture
under the Trust Indenture Act of 1939. Unless the applicable prospectus
supplement states otherwise, Bank One Trust Company, N.A. will act as indenture
trustee under each relevant declaration of trust.
Each series of preferred securities will represent undivided beneficial
ownership interests in the assets of the applicable trust. The holders of the
preferred securities will be entitled to a preference in certain circumstances
regarding distributions from the applicable trust and amounts payable on
redemption or liquidation over the corresponding series of common securities, as
well as other benefits as described in the relevant declaration of trust.
SPECIFIC TERMS OF EACH SERIES
Each time that a trust issues a series of preferred securities, the
prospectus supplement relating to that new series will summarize the particular
amount, price and other terms and provisions of these preferred securities.
These terms may include the following:
- the distinctive designation of the preferred securities;
- the number of preferred securities issued by the applicable trust and the
liquidation value of each such preferred security;
- the annual distribution rate (or method of determining such rate) for
preferred securities issued by the applicable trust and the date or dates upon
which such distributions will be payable;
- whether distributions on preferred securities issued by the applicable trust
may be deferred and, if so, what the maximum number of distributions that may
be deferred and the terms and conditions of such deferrals will be;
- whether distributions on preferred securities issued by the applicable trust
will be cumulative, and, in the case of preferred securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distributions on preferred securities issued by each
trust will be cumulative;
- the amount or amounts which will be paid out of the assets of the applicable
trust to the holders of preferred securities of the trust upon voluntary or
involuntary dissolution, winding up or termination of the applicable trust;
- the obligation, if any, of the applicable trust to purchase or redeem
preferred securities issued by the applicable trust and the price or prices at
which, the period or periods within which and the terms and conditions upon
which preferred securities issued by the applicable trust will be purchased or
redeemed, in whole or in part, pursuant to such obligation;
- the voting rights, if any, of preferred securities issued by the applicable
trust in addition to those required by law, including the number of votes per
preferred security and any requirement for the approval by the holders of
preferred securities as a condition to specified action or amendments to the
relevant declaration of trust; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities issued by the applicable trust,
consistent with the declaration of the trust and with applicable law.
All preferred securities that a trust offers will be guaranteed by us to
the extent set forth below under the caption "Description of the Guarantees"
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in this prospectus. The applicable prospectus supplement will also describe the
United States federal income tax considerations applicable to each offering of
preferred securities.
ISSUANCE OF COMMON SECURITIES
In connection with the issuance of preferred securities, each trust will
also issue a new series of common securities to us. Except as described below
under the caption "-- Subordination" in this prospectus, the terms of the common
securities issued by the applicable trust will be substantially identical to the
terms of the preferred securities. These terms will be defined in the relevant
declaration of trust and will be summarized in the applicable prospectus
supplement. These terms will include the following:
- the annual distribution rate (or method of determining that rate) and the date
or dates upon which the distributions will be payable;
- the rights of the applicable trust to redeem the common securities and related
provisions;
- the voting rights of holders of the common securities;
- any liquidation rights or similar restrictions;
- and other specific terms of the common securities (not inconsistent with the
relevant declaration of trust).
SUBORDINATION
The common securities will rank on a par with, and payments will be made on
them on a proportionate basis with, the preferred securities issued by the
applicable trust, except that upon a trust enforcement event, as described
below, the rights of the holders of the common securities to payments of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities.
HOLDER OF COMMON SECURITIES
Except in certain limited circumstances, the holder of the common
securities of the applicable trust will have sole power to appoint, remove or
replace any of the trustees of the applicable trust. All of the common
securities of the applicable trust will be directly or indirectly owned by us.
TRUST ENFORCEMENT EVENTS
An event of default under the indenture that has occurred and is continuing
constitutes a trust enforcement event under the relevant declaration of trust.
REMEDIES OF HOLDERS OF PREFERRED SECURITIES AND THE PROPERTY TRUSTEE
If a trust enforcement event occurs and is continuing, then the holders of
preferred securities of the applicable trust would rely on the enforcement by
the property trustee of its rights as a holder of the junior subordinated
debentures against us. In addition, the holders of a majority in liquidation
amount of the preferred securities of the applicable trust will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the property trustee or to direct the exercise of any trust or
power conferred upon the property trustee under the relevant declaration of
trust, including the right to direct the property trustee to exercise the
remedies available to it as a holder of the junior subordinated debentures.
Upon the occurrence of a trust enforcement event, the property trustee, as
the holder of the junior subordinated debentures, will have the right under the
indenture to declare the principal of and premium, if any, and interest on the
junior subordinated debentures held by the applicable trust to be immediately
due and payable.
If the property trustee fails to enforce its rights regarding the junior
subordinated debentures held by the applicable trust, any holder of preferred
securities may, to the extent permitted by applicable law, institute a legal
proceeding directly against us to enforce the property trustee's rights under
these junior subordinated debentures without first instituting any legal
proceeding against the property trustee or any other person or entity. In
addition, if a trust enforcement event has occurred and is continuing and such
event is attributable to our failure to make any required payments on the junior
subordinated debentures when due, then a holder of preferred securities may, on
or after the date that such payment was due, institute a proceeding directly
against us for enforcement of payment on the junior subordinated debentures
having a principal amount equal to the total liquidation amount of the preferred
securities held by that holder (we refer to such
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<PAGE> 11
proceeding as a "Direct Action"). In connection with a Direct Action, we will
have the right under the indenture to set off any payment made to that holder by
us. The holders of preferred securities will not be able to exercise directly
any other remedy available to the holders of junior subordinated debentures.
REMEDIES OF HOLDERS OF COMMON SECURITIES
The holder of the common securities will be deemed to have waived any trust
enforcement event regarding the common securities until all trust enforcement
events regarding the preferred securities have been cured, waived or otherwise
eliminated. Until such a trust enforcement event has been cured, waived or
otherwise eliminated, the property trustee will be deemed to be acting solely on
behalf of the holders of the preferred securities and only the holders of the
preferred securities will have the right to direct the property trustee
regarding remedies under the relevant declaration of trust, and, therefore, the
indenture.
LIMITATION ON CONSOLIDATIONS, MERGERS AND SALE OF ASSETS
Each of the trusts may not consolidate, merge with or into, or sell or
lease substantially all of its properties and assets to any corporation or other
entity, unless:
- a majority of the administrative trustees consent to such a transaction;
- the successor assumes all of the obligations of the trust regarding the
preferred securities, or substitutes other securities for the preferred
securities with the same terms and other provisions as the preferred
securities (which we refer to as "Successor Securities"), and regarding the
trustees;
- if Successor Securities are issued, these securities are listed on the same
national securities exchange on which the preferred securities were listed;
- the transaction does not cause the preferred securities or the Successor
Securities to be downgraded by a national ratings organization;
- such transaction does not adversely affect the rights of the holders of the
preferred securities in any material respect;
- following the transaction, the trust would not have to register as an
"investment company" under the Investment Company Act of 1940;
- we, or a successor which will own all of the common securities of the trust or
its successor, will guarantee the preferred securities, or the Successor
Securities, to the same extent as the preferred securities are guaranteed by
the guarantee;
- the trust would not be classified as an association or publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, unless each holder of preferred securities consents to such a
change; and
- the holders of the preferred securities would continue to be treated as owning
an undivided beneficial interest in the assets of the trust, unless each
holder of the preferred securities consents to such a change.
PAYING AGENT
Unless the applicable prospectus supplement states otherwise, in the event
that any preferred securities are not in the form of global securities, as
described under "Book-Entry Issuance", each trust will maintain in the Borough
of Manhattan, The City of New York, an office or agency where the preferred
securities may be presented for payment by a paying agent.
Each trust may appoint a paying agent and may appoint one or more
additional paying agents in such other locations as it may determine and change
any paying agent without prior notice to the holders of preferred securities.
Each trust, or any of its affiliates, may act as paying agent regarding any
series of preferred securities. Unless the applicable prospectus supplement
states otherwise, the property trustee will act as paying agent for each series
of preferred securities. In the event that the property trustee will no longer
act as the paying agent, the administrative trustees may appoint a successor,
which will be a bank or trust company acceptable to us, to act as paying agent.
TRANSFER OF PREFERRED SECURITIES
For each issue of preferred securities, the property trustee will keep a
security register to provide for the transfer and registration of transfer of
preferred securities. The following provisions
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apply to the transfer of preferred securities which are not issued in book-entry
form:
- Holders of any issue of preferred securities may exchange their securities for
an equal principal amount of other preferred securities of different
authorized denominations of the same issue and with the same terms.
- No service charge will be made for any registration of transfer or exchange of
securities, but the trust may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of securities.
- If the preferred securities are to be redeemed in part, the trust will not be
required:
-- to issue, register the transfer of or exchange any securities during a period
beginning at the opening of business 15 days before the day of the mailing of
a notice of redemption of any such securities selected for redemption and
ending at the close of business on the day of such mailing; or
-- to register the transfer or exchange of any preferred security so selected
for redemption in whole or in part, except the unredeemed portion of any
security being redeemed in part.
GLOBAL SECURITIES
The preferred securities of any issue may be issued in the form of one or
more global securities. Preferred securities of any issue will no longer be
eligible to be represented in the form of a global security and will be
registered in definitive form if one of the following events occurs:
- if at any time the depositary notifies the applicable trust that it is
unwilling or unable under the Securities Exchange Act of 1934 and other
applicable law to continue as depositary or if at any time it will no longer
be eligible, in each case if a successor depositary is not appointed within 90
days after the applicable trust receives notice or becomes aware of this
ineligibility; or
- the applicable trust, in its sole discretion, may determine that the preferred
securities issued in the form of one or more global securities will no longer
be represented by a global security.
For more information regarding the issuance of global securities and the
depositary arrangements for them, see below under the caption "Book-Entry
Issuance" in this prospectus.
REGISTRATION OF GLOBAL SECURITIES
If the preferred securities are to be issued in the form of one or more
global securities, then an administrative trustee on behalf of the applicable
trust will execute and the property trustee will cause the global securities to
be registered in the name of the depositary for these global securities or its
nominee.
REGISTRATION OF PREFERRED SECURITIES IN DEFINITIVE FORM
Preferred securities not represented by a global security which are issued
in exchange for all or a part of a global security will be registered in such
names and in such authorized denominations as the depositary, pursuant to
instructions from its direct or indirect participants or otherwise, will
instruct the property trustee. Upon execution and authentication, the property
trustee will deliver the preferred securities not represented by a global
security to the persons in whose names such definitive preferred securities are
so registered. The preferred securities that are not initially represented by a
global security may be exchanged or transferred for part of a global security
pursuant to the instructions and procedures of the depositary.
RELIANCE ON THE DEPOSITARY BY THE TRUSTS AND PROPERTY TRUSTEE
In connection with each issue of preferred securities, the applicable trust
and property trustee may for all purposes, including the making of payments due
on these preferred securities, deal with the depositary as the authorized
representative of the holders of these preferred securities for the purpose of
exercising the rights of these holders. The rights of the owner of any
beneficial interest in a global security will be limited to those established by
law and agreements between such owners and depository participants or Euroclear
and Cedel; provided that no such agreement will give any rights to any person
against the applicable trust or property trustee without the written consent of
these parties.
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TRANSFER OF BENEFICIAL INTERESTS IN GLOBAL SECURITIES
Global securities may not be transferred as a whole except under the
following circumstances:
- by the depositary to a nominee of the depositary;
- by a nominee of the depositary to the depositary or another nominee of the
depositary; or
- by the depositary or any such nominee to a successor depositary or a nominee
of such successor depositary.
Interests of beneficial owners in a global security may be transferred or
exchanged for preferred securities not represented by a global security and
preferred securities not represented by a global security may be transferred or
exchanged for global securities in accordance with rules of the depositary.
AMENDMENTS
AMENDMENTS WITHOUT CONSENT OF HOLDERS OF PREFERRED SECURITIES
Each declaration of trust may be amended without the consent of the holders
of the preferred securities:
- to cure any ambiguity;
- to correct or supplement any provisions in the declaration of trust that may
be defective or inconsistent with any other provision in the relevant
declaration of trust;
- to add to our covenants, restrictions or obligations, as sponsor of the
trusts;
- to conform to any change in Rule 3a-5 under the Investment Company Act of 1940
or written change in interpretation or application of Rule 3a-5 under the
Investment Company Act of 1940 by any legislative body, court, government
agency or regulatory authority; or
- to modify, eliminate or add to any provisions as necessary to the relevant
declaration of trust to ensure that the trust will be classified for United
States federal income tax purposes as a grantor trust at all times that any
preferred securities or common securities are outstanding or to ensure that
the trust will not be required to register as an "investment company" under
the Investment Company Act of 1940;
provided that any action described in this sentence may be taken only if it does
not adversely affect in any material respect the rights of the holders of
preferred securities or common securities.
AMENDMENT WITH CONSENT OF HOLDERS OF PREFERRED SECURITIES AND COMMON SECURITIES
Without the consent of each holder of the preferred securities and the
common securities, the relevant declaration of trust may not be amended to:
- change the amount or timing of any distribution of the preferred securities
and the common securities or otherwise adversely affect the amount of any
distribution required to be made on the preferred securities and the common
securities;
- restrict the right of a holder of preferred securities to institute suit for
the enforcement of any payment owed on these securities; or
- change the voting requirements and other provisions relating to amendments.
Without the consent of 66 2/3% of the holders of outstanding preferred
securities and common securities voting as a single class, the relevant
declaration of trust may not be amended to:
1. adversely affect the powers, preferences or special rights of the
preferred securities and the common securities; or
2. result in the dissolution, winding-up or termination of the applicable
trust other than pursuant to the terms of the relevant declaration of
trust;
provided that, if any amendment or proposal referred to in clause (1) above
would adversely affect only the preferred securities or the common securities,
then only the affected class will be entitled to vote on such amendment or
proposal.
AMENDMENTS WITH CONSENT OF HOLDERS OF COMMON SECURITIES
Without the consent of the holders of a majority in liquidation amount of
the common securities, the relevant declaration of trust may not be amended to
change the rights of the holders of the common securities to increase or
decrease the number of, and appoint and remove trustees.
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PROVISIONS THAT MAY NOT BE AMENDED
Under no circumstances may the following provisions of the relevant
declaration of trust be amended:
- to cause the applicable trust to be classified an association or publicly
traded partnership taxable as a corporation as for United States federal
income tax purposes;
- to reduce or otherwise adversely affect the powers of the property trustee in
contravention of the Trust Indenture Act of 1939; and
- to cause the applicable trust to be deemed to be an "investment company"
required to be registered under the Investment Company Act of 1940.
MEETINGS OF THE HOLDERS OF SECURITIES
MEETINGS
The administrative trustees of any issue of preferred securities may call a
meeting of the holders of the securities on any matter on which these securities
are entitled to act under the relevant declaration of trust. In addition, the
holders of at least 10% in liquidation amount of issue of preferred securities
may direct the administrative trustees to call such a meeting. The
administrative trustees are required to give notice of any such meeting at least
7 days but not more than 60 days before the date of that meeting. The
administrative trustees, in their sole discretion, will establish all other
provisions relating to meetings of holders of preferred securities not stated
below.
ACTION BY WRITTEN CONSENT
Whenever a vote, consent or approval of the holders of preferred securities
is permitted or required, that vote, consent or approval may be given at the
meeting. Any action that may be taken at a meeting of these holders may be taken
without a meeting and without prior notice if a consent in writing setting forth
the action so taken is signed by the holders owning not less than the minimum
amount of preferred securities in liquidation amount that would be necessary to
authorize or take such action at the meeting itself.
PROXIES
Each holder of a preferred security may authorize any person to act for it
by proxy on all matters but proxies will not be valid after the expiration of 11
months from the date thereof unless otherwise provided in the proxy. Every proxy
will be revocable at the pleasure of the holder of preferred securities
executing the proxy. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies will be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the applicable trust were a Delaware
corporation and the holders of the preferred securities were stockholders of a
Delaware corporation.
GOVERNING LAW
Each declaration of trust and the related preferred securities will be
governed by and construed in accordance with the laws of the State of Delaware.
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DESCRIPTION OF THE GUARANTEES
The following description of the terms and provisions of the guarantees
summarizes certain general terms that will apply to each guarantee that we
deliver in connection with a series of preferred securities. This description is
not complete, and we refer you to the form of the guarantee agreement, a copy of
which we filed as an exhibit to the registration statement of which this
prospectus is a part.
When a trust sells a series of its preferred securities, we will execute
and deliver a guarantee of that series of preferred securities under a guarantee
agreement for the benefit of the holders of these preferred securities. Only one
guarantee will be issued by us in connection with the issuance of preferred
securities by the applicable trust. Each guarantee agreement will be qualified
as an indenture under the Trust Indenture Act of 1939. Unless the applicable
prospectus supplement states otherwise, Bank One Trust Company, N.A. will act as
indenture trustee under each guarantee agreement. The guarantee trustee will
hold each guarantee for the benefit of the holders of the preferred securities
of the applicable trust.
SPECIFIC TERMS OF THE GUARANTEES
Except as stated in the applicable prospectus supplement, we will
irrevocably and unconditionally agree to pay in full the following payments or
distributions on each corresponding series of preferred securities, to the
extent that they are not paid by, or on behalf of, the applicable trust:
- any accumulated and unpaid distributions required to be paid on the preferred
securities, to the extent that the applicable trust has sufficient funds
available for those payments at the time;
- the redemption price regarding any preferred securities called for redemption,
to the extent that the applicable trust has sufficient funds available for
those redemption payments at such time; and
- upon a voluntary or involuntary dissolution, winding up or liquidation of the
applicable trust, unless the corresponding series of junior subordinated
debentures are distributed to holders of the preferred securities, the lesser
of:
- the total liquidation amount of the preferred securities and all
accumulated and unpaid distributions on them to the date of payment; and
- the amount of assets of the applicable trust remaining available for
distribution to holders of the preferred securities.
Our obligation to make the payments described above under the guarantee may
be satisfied by direct payment of the required amounts by us to the holders of
the applicable preferred securities or by causing the applicable trust to pay
such amounts to these holders. In addition, our obligation to make the payments
described above will exist regardless of any defense, right of setoff or
counterclaim that the applicable trust may have or assert.
Each guarantee will apply only to the extent that the applicable trust has
sufficient funds available to make the required payments. If we do not make
interest payments on the junior subordinated debentures held by the applicable
trust, then the trust will not be able to pay distributions on the preferred
securities issued by the trust and will not have funds legally available for
these payments.
NATURE OF THE GUARANTEE
We will, through the relevant declaration of trust, the guarantee, the
junior subordinated debentures and the indenture, taken together, fully and
unconditionally guarantee the applicable trust's obligations under the preferred
securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes this guarantee. It is only the
combined operation of these documents that has the effect of providing a full
and unconditional guarantee of the applicable trust's obligations under the
preferred securities.
Each guarantee will constitute a guarantee of payment and not of
collection. This means that the guaranteed party may institute a legal
proceeding directly against us to enforce its rights under a guarantee without
first instituting a legal proceeding against any other person or entity. In
addition, each guarantee will not be discharged except by payment of the amounts
due under it in full to the extent they have not been paid by the applicable
trust or upon distribution of junior subordinated debentures to the holders of
the
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preferred securities in exchange for all of these preferred securities.
GUARANTEE OF COMMON SECURITIES
We also will irrevocably and unconditionally guarantee the obligations of
the applicable trust regarding that trust's common securities to the same extent
as its guarantee of the applicable preferred securities, except that upon the
occurrence and the continuation of a trust enforcement event regarding the
applicable trust, holders of these preferred securities will have priority over
holders of the common securities regarding distributions and payments on
liquidation, redemption or otherwise.
RANKING
Each guarantee will constitute our unsecured obligation and will rank
subordinate and junior in right of payment to all of our other liabilities to
the same extent as the junior subordinated debentures.
The guarantees will not place a limitation on the amount of additional
senior debt that may be incurred by us.
CERTAIN COVENANTS OF BANCWEST CORPORATION
In general, we will covenant in each guarantee that, so long as any
preferred securities issued by a trust remain outstanding, if
- there shall have occurred any event of default under the indenture regarding
the applicable series of junior subordinated debentures;
- we shall be in default regarding its payment of any obligations under the
related guarantee; or
- we shall have given notice of our election to defer interest payments on the
junior subordinated debentures, as described below under the caption
"Description of the Junior Subordinated Debentures -- Option to Defer
Interest" and we shall not have rescinded that notice or begun making such
payments,
then we will not, and will not permit any subsidiary to, do the following:
- to declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment regarding, any of our capital stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our debt securities that rank on a par with or
junior to the junior subordinated debentures or make any payments regarding
any guarantee by us of the debt securities of any of our subsidiaries if such
guarantee ranks on a par with or junior to these junior subordinated
debentures.
At any time, however, we may do the following:
- pay dividends or make distributions in our common stock;
- make payments under the applicable guarantee made by us regarding preferred
securities of the applicable trust;
- declare a dividend in connection with the implementation of a shareholders'
rights plan, or issue stock under any such plan in the future, or redeem or
repurchase any rights issued pursuant to such a plan; and
- purchase common stock related to the issuance of common stock or rights under
any of our benefit plans.
AMENDMENTS
Unless otherwise specified in the applicable prospectus supplement, each
guarantee may be amended under the following two circumstances:
- regarding changes to the guarantee that do not materially adversely affect the
rights of holders of the applicable preferred securities, no consent of such
holders will be required; and
- all other amendments to the guarantee may not be made without the prior
approval of the holders of not less than a majority of the total liquidation
amount of the outstanding preferred securities to which the guarantee relates.
The manner of obtaining the necessary approvals to amend a guarantee are
the same as for holders of the preferred securities, which are described above
under "Description of the Preferred Securities -- Meetings of the Holders of
Securities".
ASSIGNMENT
All guarantees and agreements contained in a guarantee will bind our
successors, assigns, receivers, trustees and representatives and will inure to
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the benefit of the holders of the related preferred securities then outstanding.
EVENTS OF DEFAULT AND REMEDIES
An event of default under a guarantee will occur upon our failure to make
any of our payments or perform any of our other obligations under it.
The holders of not less than a majority in total liquidation amount of the
preferred securities to which a guarantee relates have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the guarantee trustee regarding the guarantee or to direct the exercise of any
trust or power conferred upon the guarantee trustee under such guarantee.
If the guarantee trustee fails to enforce a guarantee, then any holder of
the corresponding series of preferred securities may institute a legal
proceeding directly against us to enforce the guarantee trustee's rights under
that guarantee, without first instituting a legal proceeding against the
applicable trust that issued the preferred securities, the guarantee trustee or
any other person or entity.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance of
a default by us in performance of a guarantee, undertakes to perform only such
duties as are specifically set forth in the guarantee. After a default under the
guarantee, which has not been cured or waived, that is actually known to a
responsible officer of the guarantee trustee, the guarantee trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. Subject to this
provision, the guarantee trustee is under no obligation to exercise any of the
powers vested in it by a guarantee at the request of any holder of preferred
securities to which the guarantee relates unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred by
such action.
TERMINATION OF THE GUARANTEES
Each guarantee will terminate upon any of the following events:
- the full payment of the redemption price of all preferred securities of the
applicable trust;
- the full payment of the amounts payable upon liquidation of the applicable
trust; or
- the distribution of the junior subordinated debentures held by the applicable
trust to the holders of the preferred securities of the trust in exchange for
all of the preferred securities of the trust.
Each guarantee will continue to be effective or will be reinstated, if at
any time any holder of related preferred securities issued by the applicable
trust is required to restore payment of any sums paid under the applicable
preferred securities or the guarantee.
GOVERNING LAW
The guarantees will be governed by, and construed in accordance with, the
laws of the State of New York.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
The following summary of the terms and provisions of our junior
subordinated debentures that will be issued and sold by us and purchased by the
applicable trust that issues a series of preferred securities. It is not
complete, and we refer you to the indenture and the form of the junior
subordinated debentures, which we filed as exhibits to the registration
statement of which this prospectus is a part.
Unless otherwise specified in the applicable prospectus supplement, each
time that we issue a new series of junior subordinated debentures that series
will be issued under an indenture between us and Bank One Trust Company, N.A.,
as indenture trustee. The indenture provides for the issuance from time to time
of junior subordinated debentures in an unlimited dollar amount and an unlimited
number of series. Only one series of the junior subordinated debentures will be
issued to each trust in connection with the issuance of preferred securities by
that trust.
Unless the applicable prospectus supplement states otherwise, we will issue
each new series of junior subordinated debentures in a total principal amount
equal to the total liquidation amount of the preferred securities and common
securities that the applicable trust issues to us in exchange for the junior
subordinated debentures. Concurrently with the issuance of the junior
subordinated debentures in exchange for the preferred securities and common
securities, we will sell the preferred securities to the public. Unless the
applicable prospectus supplement states otherwise, the interest payment
provisions for the junior subordinated debentures will correspond to the
distribution provisions of the corresponding series of preferred securities.
SPECIFIC TERMS OF EACH SERIES
Each time that we issue a new series of junior subordinated debentures to
the applicable trust, the prospectus supplement relating to that new series will
specify the particular amount, price and other terms of these securities. These
terms will include:
- the title of the junior subordinated debentures of the series, which will
distinguish the junior subordinated debentures of the series from all other
junior subordinated debentures;
- the limit, if any, upon the total principal amount of the junior subordinated
debentures of the series which may be issued;
- the maturity or the method of determining the maturity;
- the rate or rates, if any, at which the junior subordinated debentures of the
series will bear interest, if any, the rate or rates and extent to which
interest on overdue amounts, if any, will be payable in respect of any junior
subordinated debentures of the series;
- the interest payment dates and the record dates for the interest payable on
any interest payment date or the method by which any of the foregoing will be
determined;
- the place or places where the principal of and premium, if any, and interest
on the junior subordinated debentures of the series will be payable, the place
or places where the junior subordinated debentures of the series may be
presented for registration of transfer or exchange and the place or places
where notices and demands to or upon us regarding the junior subordinated
debentures of the series may be made;
- the period or periods within which, or the date or dates on which, if any, the
price or prices at which and the terms and conditions upon which the junior
subordinated debentures of the series may be redeemed, in whole or in part, at
our option;
- our obligation or our right, if any, to redeem, repay or purchase the junior
subordinated debentures of the series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified
event, or at the option of a holder of that security, and the period or
periods within which, the price or prices at which, the currency or currencies
(including currency unit or units) in which and the other terms and conditions
upon which junior subordinated debentures of the series will be redeemed,
repaid or purchased, in whole or in part, pursuant to that obligation;
- the denominations in which any junior subordinated debentures of the series
will be issuable,
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if other than denominations of $25 and any integral multiple thereof;
- if other than U.S. dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest,
if any, on the junior subordinated debentures of the series will be payable,
or in which the junior subordinated debentures of the series will be
denominated;
- the additions, modifications or deletions, if any, in the events of default
described under the caption "Events of Default" below or our covenants
described in this prospectus or the applicable prospectus supplement regarding
the junior subordinated debentures of the series;
- if other than the principal amount thereof, the portion of the principal
amount of junior subordinated debentures of the series that will be payable
upon declaration of acceleration of the maturity of the junior subordinated
debentures;
- the additions or changes, if any, to the indenture regarding the junior
subordinated debentures of the series as will be necessary to permit or
facilitate the issuance of the junior subordinated debentures of the series in
bearer form, registrable or not registrable as to principal, and with or
without interest coupons;
- any index or indices used to determine the amount of payments of principal of
and premium, if any, on the junior subordinated debentures of the series or
the manner in which the amounts will be determined;
- whether the junior subordinated debentures of the series, or any portion
thereof, will initially be issuable in the form of a temporary global security
representing all or the portion of the junior subordinated debentures of the
series and provisions for the exchange of the temporary global security for
definitive junior subordinated debentures of the series;
- Whether any junior subordinated debentures of the series will be issuable in
whole or in part in the form of one or more global securities and, in the
case, the respective depositaries for the global securities, the form of any
legend or legends which will be borne by any global security, if applicable;
- the appointment of any paying agent or agents for the junior subordinated
debentures of the series;
- the terms of any right to convert or exchange junior subordinated debentures
of the series into any other junior subordinated debentures or other
securities or property of ours, and the additions or changes, if any, to the
indenture regarding the junior subordinated debentures of the series to permit
or facilitate the conversion or exchange;
- the relative degree, if any, to which the junior subordinated debentures of
the series will be senior to or be subordinated to other series of junior
subordinated debentures in right of payment, whether the other series of
junior subordinated debentures are outstanding or not; and
- any other terms of the junior subordinated debentures of the series (which
terms will not be inconsistent with the provisions of the indenture).
RANKING
Unless otherwise stated in the applicable prospectus supplement, each
series of junior subordinated debentures will be unsecured and will rank junior
and be subordinate in right of payment to all our senior debt.
SUBORDINATION
Our obligations under the junior subordinated debentures will be
subordinate to all our existing and future senior debt. In addition, the junior
subordinated debentures will be effectively subordinated to all existing and
future obligations of our subsidiaries. Our obligations under the guarantees are
subordinated to the same extent as the junior subordinated securities. This
means that we cannot make any payments on the junior subordinated debentures or
the guarantees if we are in default on any of its senior debt.
In addition, in the event of our bankruptcy, liquidation or dissolution,
our assets must be used to pay off our senior obligations in full before any
payments may be made on the junior subordinated debentures or the guarantees.
The indenture, the guarantees and the declaration of trusts do not limit our
ability to incur additional senior debt. For more information, see above under
the caption "-- Ranking" in this section and below under the
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caption "Description of the Guarantees -- Ranking" in this prospectus.
As a holding company, our assets primarily consist of the equity securities
of our subsidiaries. As a result, our cash flow and consequent ability to
service our debt, including the junior subordinated debentures, are dependent
upon the earnings of our subsidiaries and the distribution of those earnings to
us, or upon loans or other payments of funds by those subsidiaries to us. Our
subsidiaries are separate and distinct legal entities and will have no
obligation, contingent or otherwise, to pay any interest or principal on the
junior subordinated debentures or to make any funds available therefor, whether
by dividends, loans or other payments. The payment of dividends by our
subsidiaries is contingent upon the earnings of those subsidiaries and is
subject to various business considerations in addition to the requirements of
federal bank and other regulators and contractual restrictions.
In addition, since the junior subordinated debentures will be obligations
of a holding company, the ability of holders of the junior subordinated
debentures to benefit from any distribution of assets of any subsidiary upon the
liquidation or reorganization of such subsidiary is subordinate to the prior
claims of present and future creditors of that subsidiary.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
Unless stated otherwise in the applicable prospectus supplement, we may
dissolve and liquidate a trust and, thereafter, the property trustee would
distribute to holders of the corresponding preferred securities and common
securities the junior subordinated debentures of the series that such trust had
held as its sole asset. If the property trustee distributes the junior
subordinated debentures to the holders of the preferred securities and the
common securities upon the dissolution and liquidation of such trust, then the
junior subordinated debentures will be issued in denominations of $25 principal
amount and integral multiples thereof unless otherwise specified in the
applicable prospectus supplement. We anticipate that the junior subordinated
debentures would be distributed in the form of one or more global securities and
that DTC, or any successor depositary for the preferred securities, would act as
depositary for the junior subordinated debentures. The depositary arrangements
for the junior subordinated debentures would be substantially the same as those
in effect for the preferred securities. For a description of DTC and the terms
of the depositary arrangements relating to payments, transfers, voting rights,
redemption and other notices and other matters for the preferred securities, see
the caption below under "Book-Entry Issuance" in this prospectus.
OPTION TO DEFER INTEREST PAYMENTS
OPTION TO DEFER INTEREST PAYMENTS
Unless otherwise stated in the applicable prospectus supplement, we will
have the right to defer interest payments on the junior subordinated debentures
for up to five years of consecutive interest payment periods if the junior
subordinated debentures are not in default, but the deferral of interest
payments cannot extend beyond the maturity date of the series of junior
subordinated debentures. During the deferral period, interest will continue to
accrue on the junior subordinated debentures, compounded on the same periodic
basis upon which interest otherwise accrues and deferred interest payments will
accrue additional interest. No interest will be due and payable on the junior
subordinated debentures until the end of the deferral period except upon a
redemption of the junior subordinated debentures during a deferral period.
We may pay at any time all or any portion of the interest accrued to that
point during a deferral period. At the end of the deferral period, or on any
redemption date, we will be obligated to pay all accrued and unpaid interest.
Once we pay accrued and unpaid interest on the junior subordinated debentures,
we will again be able to defer interest payments on the junior subordinated
debentures as described above.
CERTAIN LIMITATIONS DURING A DEFERRAL PERIOD
During any deferral period, we will not and our subsidiaries will not be
permitted to:
- pay a cash dividend or make any other payment or distribution on our capital
stock;
- redeem, purchase or make a liquidation payment on any of our capital stock;
- make an interest, principal or premium payment, or repay, repurchase or
redeem, any of
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our junior subordinated debentures that rank equal with or junior to the
junior subordinated debentures; or
- make any guarantee payment regarding any guarantee by us of junior
subordinated debentures of any of our subsidiaries, if the guarantee ranks
equal with or junior to the junior subordinated debentures.
However, at any time, including during a deferral period, we will be
permitted to:
- pay dividends or distributions in additional shares of our capital stock;
- make payments under the guarantee of the series of the preferred securities
and the common securities;
- declare or pay a dividend in connection with the implementation of a
shareholders' rights plan, or issue stock under such a plan or repurchase such
rights; and
- purchase common stock for reissuance pursuant to an employee benefit, dividend
reinvestment or stock repurchase plan, or for issuance in an acquisition
transaction that was entered into prior to the commencement of that deferral
period.
NOTICE PROVISIONS
If the property trustee is the sole holder of the junior subordinated
debentures, we will give the applicable trust, the applicable administrative
trustees and property trustee notice if we decide to defer interest payments on
the junior subordinated debentures. We will give that notice one business day
before the earlier of:
- the next date distributions on the preferred securities are payable; or
- the date the applicable trust is required to give notice to the New York Stock
Exchange
(or any other applicable self regulatory organization) or to holders of the
corresponding series of preferred securities of the record date or the date
any distribution is payable, but in any event at least one business day before
the record date.
The administrative trustees will give notice to the holders of preferred
securities if we decide to defer interest payments on the junior subordinated
debentures.
If the property trustee is not the sole holder of the junior subordinated
debentures, we will give the holders notice of any deferral period ten business
days prior to the earlier of:
- the next interest payment date; or
- the date we are required to give notice to the New York Stock Exchange (or any
other applicable self-regulatory organization) or to holders of the junior
subordinated debentures of the record date or payment, date of any related
interest payment, but in any event at least two business days prior to the
record date.
COVENANTS
LIMITATION ON CERTAIN PAYMENTS
We will covenant that, so long as any preferred securities issued by a
trust remain outstanding, if
- there will have occurred any event of default under the indenture;
- we will be in default regarding our payment of any obligations under our
guarantee regarding the trust; or
- we will have given notice of our election to defer interest payments, as
described above under "-- Option to Defer Interest and Notices", or such
deferral period or any extension of it will be continuing;
then we will not, and will not permit any of our subsidiaries to:
- declare or pay any cash dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment regarding, any of our capital stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our junior subordinated debentures that rank on a
par with or junior in interest to such junior subordinated debentures;
- or make any guarantee payments regarding any guarantee by us of the junior
subordinated debentures of any of our subsidiaries if such guarantee ranks on
a par with or junior in interest to such junior subordinated debentures.
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However, at any time, including during a deferral period, we may do the
following:
- repurchase, redeem or otherwise acquire our capital stock in connection with
any of the following:
- any employment contract, benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers, directors or
consultants;
- any dividend reinvestment or stockholder stock purchase plan; or
- in connection with the issuance of our capital stock (or securities
convertible into or exercisable for such capital stock) as consideration
in an acquisition transaction entered into before the deferral period;
- exchange or convert:
- any class or series of our capital stock (or any capital stock of any
subsidiary of ours) for any class or series of our capital stock; or
- any class or series of our indebtedness for any class or series of our
capital stock;
- purchase fractional interests in shares of our capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged;
- declare a dividend in connection with any shareholders' rights plan, or the
issuance of rights, stock or other property under any such plan, or the
redemption or repurchase of any such rights pursuant thereto; and
- declare a dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is
being paid or ranks pari passu with or junior to such stock.
CERTAIN AFFIRMATIVE COVENANTS
We will covenant to:
- maintain directly or indirectly 100% ownership of the common securities of the
applicable trust;
- cause the applicable trust to remain a Delaware business trust and not to
voluntarily dissolve, windup, liquidate or be terminated, except as permitted
by the relevant declaration of trust;
- use our commercially reasonable efforts to ensure that the trust will not be
an "investment company" for purposes of the Investment Company Act of 1940;
and
- take no action that would be reasonably likely to cause the trust to be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.
LIMITATION ON CONSOLIDATION, MERGER AND CERTAIN SALES
We may not consolidate with or merge into any other entity or sell or lease
our properties and assets substantially as an entirety to any entity, unless:
- the resulting entity shall be a corporation, partnership or trust organized
under U.S. law;
- the resulting entity assumes our obligations under the junior subordinated
debentures and the indenture;
- there would be no event of default under the indenture immediately after
giving effect to the transaction; and
- in the case of the junior subordinated debentures of a series held by a trust,
the consolidation, merger, conveyance, transfer or lease is permitted under
the relevant declaration of trust and the guarantee and does not give rise to
any breach or violation of these documents.
NO EVENT RISK COVENANT
In addition, the indenture does not contain any covenants that provide
holders of junior subordinated debentures protection in the event of a highly
leveraged transaction, reorganization, restructuring, merger or other similar
transaction involving us, which may adversely affect holders of junior
subordinated debentures.
DENOMINATIONS
The junior subordinated debentures will be issuable only in registered
form, without coupons, and only in denominations of $25 and any integral
multiples thereof, unless the applicable prospectus supplement states otherwise.
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EVENTS OF DEFAULT, ACCELERATION, RESCISSION OF ACCELERATION AND WAIVERS
EVENTS OF DEFAULT
An event of default regarding any series of junior subordinated debentures
under the indenture is any one of the following events:
- default in the payment of interest, including interest on overdue amounts, for
a period of 30 days, subject to our right to defer interest payments as
described above under the caption "-- Option to Defer Interest Payments" in
this section;
- default in the payment of the principal of or premium, if any;
- default in the performance, or breach, in any material respect, of any of our
covenants or warranties for a period of 90 days after notice to us by the
indenture trustee or to us and the indenture trustee by holders of at least
25% in principal amount of the outstanding junior subordinated debentures of
that series;
- certain events of bankruptcy, insolvency and reorganization involving us; or
- any other event of default pertaining to the particular series of junior
subordinated debentures.
ACCELERATION
If an event of default of the junior subordinated debentures occurs and is
continuing, then the indenture trustee or the holders of at least 25% in total
principal amount of the outstanding junior subordinated debentures will have the
right to declare the principal and the interest due on these securities to be
due and payable immediately. If, upon such an event of default, the indenture
trustee or holders of at least 25% of the total principal amount of the
outstanding junior subordinated debentures fail to declare the payment of all
amounts on these securities to be due and payable immediately, then the holders
of at least 25% in total liquidation amount of the preferred securities then
outstanding will have the right to declare these amounts due and payable
immediately.
RESCISSION OF ACCELERATION
At any time after a declaration of acceleration, as described in the
preceding paragraph, has been made and before a judgment or decree for payment
of the money due has been obtained by the indenture trustee, then the holders of
a majority in total principal amount of the outstanding junior subordinated
debentures may rescind the declaration of acceleration if both of the following
events have occurred:
- we have paid or deposited with the indenture trustee amounts sufficient to pay
the sum of:
1. all overdue interest;
2. the principal that has become due, other than by acceleration, and
interest on it at the rate borne by the junior subordinated debentures;
3. interest on overdue interest at the rate borne by the junior
subordinated debentures, to the extent that that rate of interest is
lawful; and
4. all amounts paid or advanced by the indenture trustee and its and its
counsel's reasonable fees and expenses; and
- all events of default regarding that series of junior subordinated debentures
have been cured or waived as described below under the caption "Waiver".
If the holders of the junior subordinated debentures fail to rescind the
declaration of acceleration, then the holders of a majority in total liquidation
amount of the preferred securities will have that right.
WAIVERS
In certain cases, the holders of a majority in principal amount of the
outstanding series of junior subordinated debentures may, on behalf of the
holders of all junior subordinated debentures of that series, waive any past
default or event of default regarding that series or compliance with certain
provisions of the indenture. The following defaults may not, however, be waived:
- default in the payment of the principal of and premium or interest on any of
that series which has not been cured until that time; or
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- a default regarding a covenant or provision of the indenture which cannot be
modified or amended,
without the consent of the holder of each outstanding junior subordinated
debenture of the series affected.
Notwithstanding the rights of the holders the junior subordinated
debentures to waive certain events of default, covenants and other provisions,
as described above, the holders of at least a majority of the total liquidation
amount of the outstanding preferred securities will be required to waive any
event of default or compliance with any covenant under the indenture.
AGREEMENT BY PURCHASERS OF CERTAIN TAX TREATMENT
Each junior subordinated debenture will provide that, by acceptance of the
junior subordinated debentures, or a beneficial interest therein, the holders of
the junior subordinated debentures intend that such junior subordinate
debentures constitutes debt and agree to treat it as debt for United States
federal, state and local tax purposes.
SATISFACTION AND DISCHARGE
At our request, the indenture will terminate as to the junior subordinated
debentures of any series (except as to any surviving rights of registration of
transfer or exchange of junior subordinated debentures) when either:
- all the junior subordinated debentures of that series have been delivered to
the indenture trustee for cancellation; or
- all the junior subordinated debentures of that series have become due and
payable, will become due and payable at their maturity within one year or are
to be called for redemption within one year and we have deposited with the
indenture trustee funds sufficient to make all remaining interest and
principal payments on the junior subordinated debentures of that series.
AMENDMENTS
AMENDMENTS WITHOUT CONSENT OF HOLDERS
Without the consent of each holder of the junior subordinated debentures,
we may enter, together with the indenture trustee, into one or more supplemental
indentures to do the following:
- to evidence the succession of another party to us and the assumption by that
party of our covenants under the indenture;
- to add to our covenants for the benefit of the holders of the junior
subordinated debentures;
- to cure any ambiguity, to correct or supplement any provision of the indenture
which may be inconsistent with any other or to make any other provision which
regarding matters or questions under the indenture; provided that any such
supplemental indenture may not materially adversely affect the interests of
the holders of the junior subordinated debentures or the related preferred
securities; or
- to comply with the requirements of the SEC to effect or maintain the
qualification of the Indenture under the Trust Indenture Act of 1939.
AMENDMENTS WITH CONSENT OF HOLDERS
Without the consent of each holder of an outstanding junior subordinated
debenture, we may not and the indenture trustee may not amend the indenture to
effect the following changes to the terms and provisions of the junior
subordinated debentures:
- to change their maturity;
- to change or reduce the principal amount due;
- to change the interest rate on or any installment of interest due;
- to change the place of payment or the currency in which payment is due;
- to impair the right to sue for enforcement of any such payment on or after the
maturity or redemption date of the junior subordinated debentures;
- to modify the subordination provisions in a manner adverse to the holders of
the junior subordinated debentures;
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- to reduce the outstanding principal amount of junior subordinated debentures
that is required for any supplemental indenture or the waiver of defaults or
Events of Default as defined in the indenture; or
- to modify this section regarding amendments or the provisions regarding the
waiver of past defaults;
provided that no such modifications may be made that adversely affects the
holders of the preferred securities.
AMENDMENTS WITHOUT CONSENT OF HOLDERS OF PREFERRED SECURITIES
Without the consent of each of the holders of preferred securities, no
amendment may be made to the indenture that adversely affects the rights of
these holders to directly institute a proceeding against us for the enforcement
of the payment of interest of or principal on the junior subordinated debentures
in the amount of such holders' total liquidation amount of preferred securities.
PAYMENTS AND PAYING AGENTS
At our option, interest on any series of junior subordinated debentures may
be paid:
- by check mailed to the address of the person entitled thereto as it will
appear on the junior subordinated debentures register of the series; or
- by wire transfer in immediately available funds at the place and to the
account as designated by the person entitled to such payment.
Initially, the paying agent will be Bank One Trust Company, N.A. We may
change the paying agent and may perform that role or have one of our
subsidiaries act as paying agent.
REGISTRATION, TRANSFER AND EXCHANGE
The indenture trustee will keep a security register to register the junior
subordinated debentures and to register the transfer and exchanges of junior
subordinated debentures for each trust. Holders of junior subordinated
debentures may register the transfer of a security upon surrender of the
security thus exchanged or transferred. Holders of junior subordinated
debentures of any series may exchange their securities for an equal principal
amount of other junior subordinated debentures of different authorized
denominations of the same series and with the same terms. We will not charge a
fee to holders of junior subordinated debentures for any transfer or exchange of
these securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of securities.
MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
We will replace any mutilated, destroyed, lost or stolen junior
subordinated debenture in exchange for a new junior subordinated debenture of
the same series of like tenor and principal amount and other terms. Upon the
issuance of any new security, we may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses, including the fees and expenses of the trustee,
connected with it.
INFORMATION REGARDING THE INDENTURE TRUSTEE
The indenture trustee, other than during the occurrence and continuance of
a default by us under the indenture, undertakes to perform only such duties as
are specifically set forth in the indenture. After a default under the
indenture, which has not been cured or waived, that is actually known to a
responsible officer of the indenture trustee, the indenture trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. Subject to this
provision, the indenture trustee is under no obligation to exercise any of the
powers vested in it by an indenture at the request of any holder of junior
subordinated debentures unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred by such action.
GOVERNING LAW
The indenture will be governed by, and construed in accordance with, the
laws of the State of New York.
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BOOK-ENTRY ISSUANCE
We have summarized below certain terms relating to the book-entry
facilities of the depositary for the preferred securities. To the extent that
this summary is inconsistent with the book-entry provisions and description of
the preferred securities in the accompanying prospectus supplement, you should
rely on the description in the accompanying prospectus supplement.
The preferred securities of each series will be represented by one or more
global securities that will be deposited with and registered in the name of DTC
or its nominee. This means that each time a trust issues a new series of
preferred securities, it will not issue physical certificates that represent
ownership of the preferred securities to the purchasers of these securities.
Rather, the preferred securities will be represented by one or more global
securities. Each global security will be issued to DTC, or its nominee, and held
by or on behalf of DTC, or its nominee. DTC will keep a computerized record of
its participants (for example, a broker) whose clients have purchased the
preferred securities. Each participant will then keep a record of its clients.
Unless it is exchanged in whole or in part for a certificated security, a global
security may not be transferred. However, DTC, its nominees and their successors
may transfer a global security as a whole to one another.
In the event that junior subordinated debentures are distributed to holders
of the corresponding series of preferred securities and common securities, as
described under "Description of the Junior Subordinated
Debentures -- Distribution of Junior Subordinated Debentures" in this
prospectus, those junior subordinated debentures would be represented by one or
more global securities. The book-entry and depositary arrangements for these
securities would be substantially similar to those described below for the
preferred securities.
RECORDS OF BENEFICIAL INTERESTS
Beneficial interests in a global security will be shown on, and transfers
of the global security will be made only through, records maintained by DTC and
its participants. DTC has provided the trusts and us with the information that
follows. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the United States Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered under the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds securities that its participants
(which it terms its "direct participants") deposit with DTC. DTC also records
the settlements among direct participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
direct participants' accounts. This eliminates the need to exchange certificates
in definitive form. Direct participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on file
with the SEC.
DTC is owned by a number of its direct participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
When you purchase preferred securities through the DTC system, the
purchases must be made by or through a direct participant, who will receive
credit for the preferred securities on DTC's records. When you purchase the
preferred securities, you will be the beneficial owner. Your ownership interest
will only be recorded on the direct (or indirect) participants' records. DTC
will have no knowledge of your individual ownership of the preferred securities.
DTC's records only show the identity of the direct participants and the amount
of the preferred securities held by or through them. You will not receive a
written confirmation of your purchase or sale or any periodic account statement
directly from DTC. Instead you will receive these from your direct (or indirect)
participant. As a result, the direct (or indirect) participants are responsible
for keeping accurate account of the securities holdings of their customers like
you.
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WIRING OF PAYMENTS
Each time that a trust issues a new series of preferred securities, the
property trustee will wire payments on the preferred securities to DTC's
nominee. We, the trust and the property trustee will treat DTC's nominee as the
owner of each global security for all purposes. As a result, we, the trust, the
property trustee and any paying agent will have no direct responsibility or
liability to pay amounts due on the global security to you or any other
beneficial owners in the global security.
REDEMPTION
Any redemption notices will be sent by us and the trust directly to DTC,
who will, in turn, inform the direct participants (or the indirect
participants), who will then contact you as a beneficial holder. If less than
all of the preferred securities are being redeemed, DTC will proportionally
allot the amount of the interest of each direct participant to be redeemed.
It is DTC's current practice, upon receipt of any payment of distributions
or liquidation amount, to credit direct participants' accounts on the payment
date based on their holding of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to direct participants whose accounts are credited
with preferred securities on a record date, by using an omnibus proxy. Payments
by participants to owners of beneficial interests in the global securities, and
voting by participants, will be based on the customary practices between the
participants and owners of beneficial interests. However, payments will be the
responsibility of the participants and not of DTC, the property trustee, us or
the trust.
EXCHANGES
Preferred securities represented by a global security will be exchangeable
for certificated securities with the same terms in authorized denominations only
if:
- DTC is unwilling or unable to continue as depositary or if DTC ceases to be a
clearing agency registered under applicable law and a successor depositary is
not appointed by the trust within 90 days; or
- the trust decides to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary).
If the book-entry only system is discontinued, the property trustee will
keep the registration books for the preferred securities of each trust at its
corporate office.
EUROCLEAR AND CEDEL
Links have been established among DTC, Cedel and Euroclear, to facilitate
the initial issuance of the preferred securities and cross-market transfers of
the preferred securities associated with secondary market trading.
Although DTC, Cedel and Euroclear have agreed to the procedures provided
below in order to facilitate transfers of the preferred securities among their
participants, they are under no obligation to perform or continue to perform
such procedures and such procedures may be modified or discontinued at any time.
Cedel and Euroclear will hold interests on behalf of their participants through
customers' securities accounts in Cedel's and Euroclear's names on the books of
their respective depositaries (which we refer to as the "U.S. depositaries"),
which in turn will hold such interests in customers' securities accounts in the
depositaries' names on the books of DTC.
When preferred securities are to be transferred from the account of a DTC
participant to the account of a Cedel participant or a Euroclear participant,
the purchaser must send instructions to Cedel or Euroclear through a participant
at least one business day prior to settlement. Cedel or Euroclear, as the case
may be, will instruct the relevant U.S. depositary to receive the preferred
securities against payment. Payment will then be made by such U.S. depositary to
the DTC participant's account against delivery of the preferred securities.
After settlement has been completed, the preferred securities will be credited
to the respective clearing system and by the clearing system, in accordance with
its usual procedures, to the Cedel participant's or Euroclear participant's
account. Credit for the preferred securities will appear on the next day (in
European time).
Because the settlement is taking place during New York business hours, DTC
participants can employ their usual procedures for sending preferred securities
to the relevant U.S. depositary for
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the benefit of Cedel participants or Euroclear participants. The sale proceeds
will be available to the DTC seller on the settlement date. Thus, to the DTC
participant, a cross-market transaction will settle no differently than a trade
between two DTC participants.
Due to time zone differences in their favor, Cedel participants or
Euroclear participants may employ their customary procedures for transactions in
which preferred securities are to be transferred by the respective clearing
system through the relevant U.S. depositary to another DTC participant. The
seller must send instructions to Cedel or Euroclear through a participant at
least one business day prior to settlement. In these cases, Cedel or Euroclear
will instruct its U.S. depositary to credit the preferred securities to the DTC
participant's account against payment. The payment will then be reflected in the
account of the Cedel participant or Euroclear participant the following day, and
receipt of the cash proceeds in the Cedel participant's or Euroclear
participant's account will be back-valued to the value date (which would be the
preceding day, when settlement occurs in New York). If the Cedel participant or
Euroclear participant has a line of credit with its respective clearing system
and elects to draw on such line of credit in anticipation of receipt of the sale
proceeds in its account, the back-valuation may substantially reduce or offset
any overdraft charges incurred over the one-day period. If settlement is not
completed on the intended value date (i.e., the trade fails), receipt of the
cash proceeds in the Cedel participant's or Euroclear participant's account
would instead be valued as of the actual settlement date.
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ERISA MATTERS
We may be considered a "party in interest" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended (which we refer to
as "ERISA"), and a "disqualified person" under corresponding provisions of the
Code, regarding certain employee benefit plans. Certain transactions between an
employee benefit plan and a party in interest or disqualified person may result
in "prohibited transactions" within the meaning of ERISA and the Code. Any
employee benefit plan proposing to invest in the preferred securities should
consult with its legal counsel.
PLAN OF DISTRIBUTION
The trusts may sell their preferred securities in any of three ways:
- through underwriters;
- through agents; or
- directly to a limited number of institutional purchasers or to a single
purchaser.
The prospectus supplement for each series of preferred securities will
describe that offering, including:
- the name or names of any underwriters;
- the purchase price and the proceeds to us from that sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers; and
- any securities exchanges on which the securities of that series may be listed.
UNDERWRITERS
If underwriters are used in the sale, we will execute an underwriting
agreement with those underwriters. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase preferred securities
will be subject to certain conditions. The underwriters will be obligated to
purchase all of the preferred securities of a series if any are purchased.
The preferred securities will be acquired by the underwriters for their own
account and may be resold by them from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Underwriters may be deemed to
have received compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from the purchasers of preferred
securities for whom they may act as agent. Underwriters may sell preferred
securities to or through dealers. These dealers may receive compensation in the
form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
We may authorize underwriters to solicit offers by certain types of
institutions to purchase preferred securities from us at the public offering
price stated in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. If we sell
preferred securities pursuant to these delayed delivery contracts, the
prospectus supplement will state that as well as the conditions to which these
delayed delivery contracts will be subject and the commissions payable for that
solicitation.
AGENTS
We may also sell preferred securities through agents designated by us from
time to time. We will name any agent involved in the offer or sale of the
preferred securities and will list commissions payable by us to these agents in
the applicable prospectus supplement. These agents will be acting on a best
efforts basis to solicit purchases for the period of its appointment, unless we
state otherwise in the prospectus supplement.
DIRECT SALES
We may sell preferred securities directly to purchasers. In this case, we
will not engage underwriters or agents in the offer and sale of preferred
securities.
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INDEMNIFICATION
We may indemnify underwriters, dealers or agents who participate in the
distribution of preferred securities against certain liabilities, including
liabilities under the Securities Act of 1933, and agree to contribute to
payments which these underwriters, dealers or agents may be required to make.
NO ASSURANCE OF LIQUIDITY
Each series of preferred securities will be a new issue of securities with
no established trading market. Any underwriters that purchase preferred
securities from us may make a market in these preferred securities. The
underwriters will not be obligated, however, to make such a market and may
discontinue market-making at any time without notice to holders of the preferred
securities. As a result, we cannot assure you that there will be liquidity in
the trading market for any preferred securities of any series.
NASD REQUIREMENTS
The underwriting and agency arrangements for any offering of the capital
securities will comply with the requirements of Rule 2720 of the National
Association of Securities Dealers, Inc. (which we refer to as the "NASD")
regarding an NASD member firm's participating in distributing its affiliate's
securities.
LEGAL OPINIONS
Certain matters of Delaware law relating to each trust will be passed upon
for the trusts and BancWest Corporation by Richards, Layton & Finger, P.A.,
Wilmington, Delaware. The validity of the junior subordinated debentures and the
guarantees will be passed upon for BancWest Corporation and the trusts by
Simpson Thacher & Bartlett, New York City, New York. Certain United States
federal income taxation matters also will be passed upon for BancWest
Corporation and the trusts by Simpson Thacher & Bartlett.
EXPERTS
The consolidated financial statements as of December 31, 1999 and 1998, and
for each of the three years in the period ended December 31, 1999 incorporated
in this prospectus by reference from our Annual Report on Form 10-K for the year
ended December 31, 1999 have been audited by PricewaterhouseCoopers LLP,
independent accountants, as stated in their report, which are incorporated
herein by reference, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
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PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemization of all fees and expenses incurred or
expected to be incurred by the registrants in connection with the issuance and
distribution of the securities being registered hereby, other than underwriting
discounts and commissions. All but the Securities and Exchange Commission
registration fee are estimates and remain subject to future contingencies.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 79,200
Legal fees and expenses..................................... 270,000
Accounting fees and expenses................................ 70,000
Trustees' fees and expenses................................. 16,000
Rating Agency fees.......................................... 255,000
Printing and engraving fees and expenses.................... 90,000
Miscellaneous fees and expenses............................. 50,000
--------
Total............................................. $830,200
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
BancWest Corporation is incorporated under the laws of Delaware. Section
145 of the Delaware General Corporation Law authorizes indemnification of
directors and officers of a Delaware corporation under certain circumstances
against expenses, judgements and the like in connection with an action, suit or
proceeding. Article X of BancWest Corporation's Amended and Restated Bylaws
provides for the indemnification of directors and officers under certain
circumstances. BancWest Corporation has purchased a standard liability policy,
which, subject to any limitations set forth in the policy, indemnifies BancWest
Corporation's directors and officers for damages that they become legally
obligated to pay as a result of any negligent act, error or omission committed
while serving in their official capacity.
BNP Paribas, the holder of 100% of the Class A Common Stock of BancWest
Corporation, has agreed to indemnify the persons who serve as Class A directors
of BancWest Corporation (who are elected by the holders of the Class A Common
Stock) under certain circumstances against expenses, judgments and the like in
connection with an action, suit or proceeding by reason of the fact that the
person is or was a Class A director.
The declaration of trust of each trust also provides that BancWest
Corporation shall indemnify the property trustee or any of its affiliates, the
Delaware trustee or any of its affiliates, or any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the property trustee and the Delaware trustee for, and
hold each such person harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties under
such declaration of trust.
The declaration of trust of each trust also provides that BancWest
Corporation will indemnify, to the full extent permitted by law, any
administrative trustee, affiliate of any administrative trustee or any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any administrative trustee or any affiliate thereof; or any officer, employee
or agent of such trust or its affiliates, each such person referred to herein as
a debenture issuer indemnified 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 by or in the right of such trust) by reason of the fact that he is or
was a debenture issuer indemnified person against expenses (including attorney
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of such trust, and, regarding any criminal action or
II-1
<PAGE> 32
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 debenture issuer indemnified person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of such trust, and, regarding any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful. The declaration of trust for each trust also provides that BancWest
Corporation shall indemnify, to the full extent permitted by law, any debenture
issuer indemnified person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the trust to procure a judgment in its favor by reason of the fact that he is
or was a debenture issuer indemnified person against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such debenture issuer indemnified person
shall have been adjudged to be liable to the trust unless and only to the extent
that the Court of Chancery of Delaware 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
of Chancery or such other court shall deem proper. The declaration of trust of
each trust further provides that expenses (including attorneys' fees) incurred
by a debenture issuer indemnified person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in the
immediately preceding two sentences shall be paid by BancWest Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such debenture issuer indemnified person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by BancWest Corporation as authorized in the declaration of
trust.
Any underwriting agreement or agency agreement with respect to an offering
of securities registered hereunder will provide for indemnification of BancWest
Corporation and its officers and directors who signed this registration
statement by the underwriters or agents, as the case may be, against certain
liabilities including liabilities under the Securities Act of 1933.
II-2
<PAGE> 33
ITEM 16. EXHIBITS
The following exhibits are filed as part of this registration statement:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
Exhibit 1* Form of Underwriting Agreement.
Exhibit 4(a) Form of Indenture relating to the Junior Subordinated
Debentures to be entered by and between BancWest Corporation
and Bank One Trust Company, N.A., as Indenture Trustee.
Exhibit 4(b) Form of Guarantee Agreement to be entered by and between
BancWest Corporation, as Guarantor, and Bank One Trust
Company, N.A., as Guarantor Trustee, for the benefit of the
holders of Preferred Securities.
Exhibit 4(c) Form of Junior Subordinated Debenture (included in Article 2
of Exhibit 4(a) hereto).
Exhibit 4(d) Certificate of Trust of BancWest Capital I.
Exhibit 4(e) Certificate of Trust of BancWest Capital II.
Exhibit 4(f) Declaration of Trust of BancWest Capital I
Exhibit 4(g) Declaration of Trust of BancWest Capital II.
Exhibit 4(h) Form of Amended and Restated Declaration of Trust (included
as Annex B to Exhibit 4(a) hereto).
Exhibit 4(i) Form of Preferred Security Certificate (included as Exhibit
A to Exhibit 4(h) hereto).
Exhibit 5(a) Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of BancWest Capital I.
Exhibit 5(b) Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of BancWest Capital II.
Exhibit 5(c) Opinion of Simpson Thacher & Bartlett regarding the validity
of the Guarantee and the Junior Subordinated Debentures of
each of BancWest Capital I and BancWest Capital II.
Exhibit 8* Opinion of Simpson Thacher & Bartlett regarding certain tax
matters.
Exhibit 12 Computation of Ratio of Earnings to Fixed Charges.
Exhibit 23(a) Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(a) hereto).
Exhibit 23(b) Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(b) hereto).
Exhibit 23(c) Consent of Simpson Thacher & Bartlett (included in Exhibit
5(c) hereto).
Exhibit 23(d) Consent of Simpson Thacher & Bartlett (to be included in
Exhibit 8 hereto).
Exhibit 23(e) Consent of PricewaterhouseCoopers LLP.
Exhibit 24 Powers of Attorney.
Exhibit 25(a) Statement of Eligibility and Qualification on Form T-1 under
the Trust Indenture Act of 1939, as amended ("Form T-1"), of
Bank One Trust Company, N.A. to act as trustee with respect
to the Junior Subordinated Debentures of BancWest
Corporation, the Guarantees of BancWest Corporation with
respect to BancWest Capital I, and the Guarantees of
BancWest Corporation with respect to BancWest Capital II.
Exhibit 25(b) Form T-1 of Bank One Trust Company, N.A., as trustee, with
respect to the Preferred Securities of BancWest Capital I.
Exhibit 25(c) Form T-1 of Bank One Trust Company, N.A., as trustee, with
respect to the Preferred Securities of BancWest Capital II.
</TABLE>
---------------
* To be filed by an amendment to the registration statement or incorporated by
reference pursuant to a Current Report on Form 8-K in connection with the
offering of securities.
II-3
<PAGE> 34
ITEM 17. UNDERTAKINGS
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more that a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by BancWest Corporation pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act, each filing of BancWest Corporation's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of BancWest
Corporation pursuant to the foregoing provisions, or otherwise, BancWest
Corporation has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person of such registrant
in the successful defense of any action suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, BancWest Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BancWest
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Honolulu, the State of Hawaii, on October 25, 2000.
BANCWEST CORPORATION
By: /s/ HOWARD H. KARR
------------------------------------
Name: Howard H. Karr
Title: Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated and on October 25, 2000.
<TABLE>
<CAPTION>
SIGNATURE AND TITLE
-------------------
<C> <S>
/s/ WALTER A. DODS, JR. Chairman, Chief Executive Officer and Director
--------------------------------------------------- (Principal Officer)
Walter A. Dods, Jr.
/s/ HOWARD H. KARR Executive Vice President and Chief Financial
--------------------------------------------------- Officer (Principal Financial and Accounting
Howard H. Karr Officer)
*/s/ JACQUES ARDANT Director
---------------------------------------------------
Jacques Ardant
** Director
---------------------------------------------------
John W. A. Buyers
*/s/ JULIA ANN FROHLICH Director
---------------------------------------------------
Julia Ann Frohlich
*/s/ ROBERT A. FUHRMAN Director
---------------------------------------------------
Robert A. Fuhrman
*/s/ PAUL MULLIN GANLEY Director
---------------------------------------------------
Paul Mullin Ganley
*/s/ DAVID M. HAIG Director
---------------------------------------------------
David M. Haig
*/s/ JOHN A. HOAG Director
---------------------------------------------------
John A. Hoag
** Director
---------------------------------------------------
Bert T. Kobayashi, Jr.
</TABLE>
II-5
<PAGE> 36
<TABLE>
<CAPTION>
SIGNATURE AND TITLE
-------------------
<C> <S>
* /s/ MICHEL LARROUILH Director
---------------------------------------------------
Michel Larrouilh
* /s/ PIERRE MARIANI Director
---------------------------------------------------
Pierre Mariani
* /s/ YVES MARTRENCHAR Director
---------------------------------------------------
Yves Martrenchar
*/s/ FUJIO MATSUDA Director
---------------------------------------------------
Fujio Matsuda
*/s/ DON J. MCGRATH Director
---------------------------------------------------
Don J. McGrath
*/s/ RODNEY R. PECK Director
---------------------------------------------------
Rodney R. Peck
*/s/ JOEL SIBRAC Director
---------------------------------------------------
Joel Sibrac
/s/ JOHN K. TSUI Director
---------------------------------------------------
John K. Tsui
*/s/ JACQUES HENRI WAHL Director
---------------------------------------------------
Jacques Henri Wahl
** Director
---------------------------------------------------
Fred C. Weyand
*/s/ ROBERT C. WO Director
---------------------------------------------------
Robert C. Wo
</TABLE>
---------------
* By Power of Attorney
/s/ HOWARD H. KARR
---------------------------------------------------
Attorney-in-Fact
Name: Howard H. Karr
** Not available for signature.
II-6
<PAGE> 37
Pursuant to the requirements of the Securities Act of 1933, BancWest
Capital I and BancWest Capital II each certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-3 and had
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Honolulu, the State of Hawaii, on
October 25, 2000.
BANCWEST CAPITAL I
By: BANCWEST CORPORATION,
as Sponsor
By: /s/ HOWARD H. KARR
----------------------------------
Name: Howard H. Karr
Title: Executive Vice
President
and Chief Financial Officer
BANCWEST CAPITAL II
By: BANCWEST CORPORATION,
as Sponsor
By: /s/ HOWARD H. KARR
----------------------------------
Name: Howard H. Karr
Title: Executive Vice
President
and Chief Financial Officer
II-7
<PAGE> 38
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
Exhibit 1* Form of Underwriting Agreement.
Exhibit 4(a) Form of Indenture relating to the Junior Subordinated
Debentures to be entered by and between BancWest Corporation
and Bank One Trust Company, N.A., as Indenture Trustee.
Exhibit 4(b) Form of Guarantee Agreement to be entered by and between
BancWest Corporation, as Guarantor, and Bank One Trust
Company, N.A., as Guarantor Trustee, for the benefit of the
holders of Preferred Securities.
Exhibit 4(c) Form of Junior Subordinated Debenture (included in Article 2
of Exhibit 4(a) hereto).
Exhibit 4(d) Certificate of Trust of BancWest Capital I.
Exhibit 4(e) Certificate of Trust of BancWest Capital II.
Exhibit 4(f) Declaration of Trust of BancWest Capital I
Exhibit 4(g) Declaration of Trust of BancWest Capital II.
Exhibit 4(h) Form of Amended and Restated Declaration of Trust (included
as Annex B to Exhibit 4(a) hereto).
Exhibit 4(i) Form of Preferred Security Certificate (included as Exhibit
A to Exhibit 4(h) hereto).
Exhibit 5(a) Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of BancWest Capital I.
Exhibit 5(b) Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of BancWest Capital II.
Exhibit 5(c) Opinion of Simpson Thacher & Bartlett regarding the validity
of the Guarantee and the Junior Subordinated Debentures of
each of BancWest Capital I and BancWest Capital II.
Exhibit 8* Opinion of Simpson Thacher & Bartlett regarding certain tax
matters.
Exhibit 12 Computation of Ratio of Earnings to Fixed Charges.
Exhibit 23(a) Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(a) hereto).
Exhibit 23(b) Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(b) hereto).
Exhibit 23(c) Consent of Simpson Thacher & Bartlett (included in Exhibit
5(c) hereto).
Exhibit 23(d) Consent of Simpson Thacher & Bartlett (to be included in
Exhibit 8 hereto).
Exhibit 23(e) Consent of PricewaterhouseCoopers LLP.
Exhibit 24 Powers of Attorney.
Exhibit 25(a) Statement of Eligibility and Qualification on Form T-1 under
the Trust Indenture Act of 1939, as amended ("Form T-1"), of
Bank One Trust Company, N.A. to act as trustee with respect
to the Junior Subordinated Debentures of BancWest
Corporation, the Guarantees of BancWest Corporation with
respect to BancWest Capital I, and the Guarantees of
BancWest Corporation with respect to BancWest Capital II.
Exhibit 25(b) Form T-1 of Bank One Trust Company, N.A., as trustee, with
respect to the Preferred Securities of BancWest Capital I.
Exhibit 25(c) Form T-1 of Bank One Trust Company, N.A., as trustee, with
respect to the Preferred Securities of BancWest Capital II.
</TABLE>
---------------
* To be filed by an amendment to the registration statement or incorporated by
reference pursuant to a Current Report on Form 8-K in connection with the
offering of securities.
