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SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 2
TO
SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
FILED BY THE REGISTRANT /X/
FILED BY A PARTY OTHER THAN THE REGISTRANT / /
CHECK THE APPROPRIATE BOX:
/X/ PRELIMINARY PROXY STATEMENT
/ / CONFIDENTIAL, FOR THE USE OF THE COMMISSION
ONLY (AS PERMITTED BY RULE 14a-6(e)(2))
/ / DEFINITIVE PROXY STATEMENT
/ / DEFINITIVE ADDITIONAL MATERIALS
/ / SOLICITING MATERIAL PURSUANT TO RULE 14a11(c) OR 14a-12
BANCWEST CORPORATION
- --------------------------------------------------------------------------------
(NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
- --------------------------------------------------------------------------------
(NAME OF PERSON(S) FILING PROXY STATEMENT, IF OTHER THAN THE REGISTRANT)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
/ / NO FEE REQUIRED.
/X/ FEE COMPUTED ON TABLE BELOW PER EXCHANGE ACT
RULES 14a-6(i)(1) AND 0-11.
(1) TITLE OF EACH CLASS OF SECURITIES TO WHICH TRANSACTION
APPLIES: COMMON STOCK, PAR VALUE $1 PER SHARE, AND CLASS A
COMMON STOCK, PAR VALUE $1 PER SHARE, OF BANCWEST CORPORATION
(2) AGGREGATE NUMBER OF SECURITIES TO WHICH TRANSACTION
APPLIES: 68,696,529 SHARES OF BANCWEST COMMON STOCK, OPTIONS TO
PURCHASE 5,145,318 SHARES OF BANCWEST COMMON STOCK AND
56,074,874 SHARES OF BANCWEST CLASS A COMMON STOCK
(3) PER UNIT PRICE OR OTHER UNDERLYING VALUE OF TRANSACTION
COMPUTED PURSUANT TO EXCHANGE ACT RULE 0-11 (SET FORTH THE
AMOUNT ON WHICH THE FILING FEE IS CALCULATED AND STATE HOW IT
WAS DETERMINED):
THE TRANSACTION VALUATION WAS BASED UPON THE SUM OF
(i) THE PRODUCT OF 68,696,529 SHARES OF BANCWEST
COMMON STOCK AT A PRICE OF $35 PER SHARE IN CASH AND
(ii) A CASH-OUT OF 5,145,318 SHARES OF BANCWEST COMMON
STOCK COVERED BY OUTSTANDING OPTIONS AT AN AGGREGATE
COST OF $86,646,407.
(4) PROPOSED MAXIMUM AGGREGATE VALUE OF TRANSACTION:
$2,491,024,922
(5) TOTAL FEE PAID:
$498,205
/X/ FEE PAID PREVIOUSLY WITH PRELIMINARY MATERIALS.
$498,205
/ / CHECK BOX IF ANY PART OF THE FEE IS OFFSET AS
PROVIDED BY EXCHANGE ACT RULE 0-11(a)(2) AND IDENTIFY
THE FILING FOR WHICH THE OFFSETTING FEE WAS PAID
PREVIOUSLY. IDENTIFY THE PREVIOUS FILING BY
REGISTRATION STATEMENT NUMBER, OR THE FORM OR
SCHEDULE AND THE DATE OF ITS FILING.
(1) AMOUNT PREVIOUSLY PAID: N/A
(2) FORM, SCHEDULE OR REGISTRATION STATEMENT NO.: N/A
(3) FILING PARTY: N/A
(4) DATE FILED: N/A
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[BANCWEST CORPORATION LOGO]
999 Bishop Street
Honolulu, Hawaii
96813
Dear Fellow Stockholder:
As you may know, on May 8, 2001, we entered into a merger agreement with
BNP Paribas and a subsidiary of BNP Paribas pursuant to which we will become a
wholly owned subsidiary of BNP Paribas. We called a special meeting of
stockholders to be held on , 2001 at 9:00 a.m. local time, to consider a
proposal to adopt the merger agreement so that the merger can occur. The meeting
will be held in the Board Room, 30th Floor, First Hawaiian Center, 999 Bishop
Street, Honolulu, Hawaii. Notice of the special meeting is enclosed.
In the merger, you will be entitled to receive $35 in cash for each share
of common stock that you own. This price represents a 40.1% premium over the
closing price per share of $24.98 on May 4, 2001, the last trading day prior to
the public announcement of BNP Paribas' proposal to acquire the shares of
BancWest it does not already own, a 28.4% premium over the highest closing share
price of $27.25 prior to the public announcement of BNP Paribas' proposal and a
150% premium over the 52-week low trading price of $14.00. As of August ,
2001, the closing share price of the BancWest common stock was $ . BNP
Paribas currently owns all of our outstanding shares of Class A common stock,
representing 45% of our total outstanding voting shares. Each share of Class A
common stock will remain issued and outstanding as Class A common stock of the
surviving corporation. Since you will only have the right to receive cash in the
merger, after the merger occurs, you will no longer be a stockholder of BancWest
and BNP Paribas will be the sole stockholder of BancWest.
Based on the number of shares of common stock and the number of options to
purchase common stock outstanding as of July 27, 2001, the aggregate cash
consideration to be paid by BNP Paribas in the merger is approximately
$2,489,826,000.
The receipt of cash in exchange for your shares of common stock in the
merger will constitute a taxable transaction for U.S. federal income tax
purposes. Please read this proxy statement carefully regarding the tax
consequences of the merger.
This proxy statement gives you detailed information about the special
meeting, the merger agreement and the merger and includes the merger agreement
as Annex A. We encourage you to read the proxy statement and the merger
agreement carefully. In particular, please note that if the merger agreement is
terminated under specified circumstances, BancWest may be required to pay BNP
Paribas a termination fee of $100 million.
Our board of directors formed a special committee, consisting solely of
directors who are neither officers of BancWest nor affiliated with BNP Paribas,
to consider and evaluate the merger. The special committee unanimously
recommended to our board of directors that the merger agreement be approved. In
connection with its evaluation of the merger, the special committee engaged
Goldman, Sachs & Co. to act as its financial advisor. Goldman Sachs has rendered
its opinion stating that, as of the date of the opinion and based upon and
subject to the assumptions, limitations and qualifications set forth in the
opinion, the merger consideration of $35 in cash per share of common stock is
fair from a financial point of view to our unaffiliated stockholders. The
Goldman Sachs opinion is not a recommendation as to how any holder of shares of
BancWest common stock should vote with respect to the merger. The written
opinion of Goldman Sachs is attached as Annex B to this proxy statement, and you
should read it carefully.
Our board of directors, based on the unanimous recommendation of the
special committee, has, by the unanimous vote of directors not elected by BNP
Paribas, approved and declared the advisability of the merger agreement, and has
determined that the merger agreement and the merger are fair to and in the best
interests of BancWest and our unaffiliated stockholders. Our board of directors,
by the unanimous vote of directors not
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elected by BNP Paribas, recommends that you vote "FOR" adoption of the merger
agreement. When you consider the recommendation of our board of directors to
adopt the merger agreement, you should be aware that some of our directors have
interests in the merger that may be different than the interests of our
stockholders generally. In particular, four of our directors are executive
officers of BancWest and these executive officers will be entitled to receive
payments for all of their options of approximately $42.4 million and payments
under long term incentive plan awards of approximately $8.9 million in
connection with the merger.
Your vote is important. We cannot complete the merger unless holders of at
least two-thirds of the outstanding common stock and Class A common stock,
voting together as a single class, vote to adopt the merger agreement. As of the
record date for the special meeting, BNP Paribas, our directors and executive
officers and the Estate of S.M. Damon owned or controlled a total of 72,876,433
voting shares, which is approximately 58.4% of all outstanding shares. BNP
Paribas has agreed to vote in favor of the merger and we also expect our
directors and executive officers and the Damon Estate to vote for the
transaction. If that occurs, we will need affirmative votes from approximately
10,324,078 additional common shares (which is another 15% of our total common
stock and another 8.3% of our total voting shares) for the merger to occur.
Therefore, it is very important that your shares be represented at the special
meeting. Whether or not you plan to attend the special meeting, please complete,
sign, date and return the enclosed proxy card promptly in the enclosed prepaid
envelope. Failure to return a properly executed proxy card or to vote at the
special meeting will have the same effect as a vote against the merger
agreement.
Sincerely,
/s/ Walter A. Dods, Jr.
Walter A. Dods, Jr.
Chairman of the Board and Chief
Executive Officer
This transaction has not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission. Neither the Securities
and Exchange Commission nor any state securities commission has passed upon the
fairness or merits of this transaction or upon the accuracy or adequacy of the
information contained in this document. Any representation to the contrary is a
criminal offense.
This proxy statement is dated , 2001, and is first being mailed to
stockholders of BancWest on or about , 2001.
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[BANCWEST CORPORATION LOGO]
999 Bishop Street
Honolulu, Hawaii
96813
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
- - Date: , 2001
- - Time: 9:00 a.m., local time
- - Place: Board Room, 30th Floor, First Hawaiian Center, 999 Bishop Street,
Honolulu, Hawaii
To the stockholders of BancWest Corporation:
We are pleased to notify you of and invite you to a special meeting of
stockholders. At the meeting, you will be asked:
- To vote on a proposal to adopt the Agreement and Plan of Merger, dated as
of May 8, 2001, as Amended and Restated as of July 19, 2001, by and among
BancWest Corporation, BNP Paribas and Chauchat L.L.C., as the merger
agreement may be further amended from time to time;
- To vote on a proposal to adjourn the special meeting, if necessary, to
solicit additional votes in favor of adoption of the merger agreement; and
- To consider any other matters that are properly brought before the
special meeting or any adjournments or postponements of the special
meeting.
Only stockholders of record at the close of business on July 27, 2001 may
vote at the special meeting.
We urge you to read the accompanying proxy statement carefully as it sets
forth details of the proposed merger and other important information related to
the merger.
Under Delaware law, holders of our common stock who do not vote in favor of
the merger agreement will have the right to seek appraisal of the fair value of
their shares as determined by the Delaware Court of Chancery if the merger is
completed, but only if they submit a written demand for such an appraisal prior
to the vote on the merger agreement and they comply with the other Delaware law
procedures explained in the accompanying proxy statement.
Your vote is important. Whether or not you plan to attend the special
meeting, please complete, sign and date the accompanying proxy card and return
it in the enclosed prepaid envelope. You may also submit a proxy by telephone or
Internet by following the instructions on the enclosed proxy card. If you attend
the special meeting, you may revoke your proxy and vote in person if you wish to
do so.
By Order of the Board of Directors,
William E. Atwater
Senior Vice President, General Counsel
and Secretary
Dated , 2001
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TABLE OF CONTENTS
<Table>
<Caption>
PAGE
----
SUMMARY TERM SHEET.......................................... 1
What You Will Be Entitled to Receive in the Merger........ 1
Recommendations of the Special Committee and Our Board of
Directors.............................................. 1
Opinion of Goldman, Sachs & Co. .......................... 2
Our Position as to the Fairness of the Merger............. 2
BNP Paribas' and Chauchat's Positions as to the Fairness
of the Merger.......................................... 2
Interests of Directors and Executive Officers in the
Merger................................................. 3
Material U.S. Federal Income Tax Consequences............. 4
Appraisal Rights.......................................... 4
Regulatory Approvals...................................... 5
The Special Meeting....................................... 5
Accounting Treatment...................................... 6
The Merger Agreement...................................... 7
Information About BancWest, BNP Paribas and Chauchat...... 8
Selected Consolidated Financial Data of BancWest.......... 9
Consolidated Ratios of Earnings to Fixed Charges.......... 11
Trading Market and Price; Dividends....................... 11
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS........... 13
SPECIAL FACTORS............................................. 14
Background of the Merger.................................. 14
Recommendations of the Special Committee and Our Board of
Directors; Fairness of
the Merger............................................. 18
Preliminary Presentation by Goldman, Sachs & Co. ......... 21
Opinion of Goldman, Sachs & Co. .......................... 22
Our Forecasts............................................. 27
BNP Paribas' and Chauchat's Positions as to the Fairness
of the Merger.......................................... 28
Summary of Financial Analyses of Merrill Lynch & Co. ..... 30
Purpose and Reasons for the Merger; Structure of the
Merger................................................. 35
Effects of the Merger; Plans or Proposals After the
Merger................................................. 36
Interests of Directors and Executive Officers in the
Merger................................................. 37
Certain Relationships Between BancWest and BNP Paribas.... 41
Material U.S. Federal Income Tax Consequences of the
Merger to our Stockholders............................. 45
Litigation................................................ 46
THE SPECIAL MEETING......................................... 47
Date, Time and Place of the Special Meeting............... 47
Proposal to be Considered at the Special Meeting.......... 47
Record Date............................................... 47
Voting Rights; Vote Required for Adoption................. 47
Voting and Revocation of Proxies.......................... 48
Solicitation of Proxies................................... 49
</Table>
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<Table>
<Caption>
PAGE
----
THE MERGER.................................................. 50
Effective Time of Merger.................................. 50
Payment of Merger Consideration and Surrender of Stock
Certificates........................................... 50
Accounting Treatment...................................... 51
Fees and Expenses of the Merger........................... 51
Financing of the Merger................................... 52
Appraisal Rights.......................................... 52
Regulatory Approvals and Other Consents................... 55
The Merger Agreement...................................... 56
OTHER MATTERS............................................... 63
Security Ownership of Certain Beneficial Owners and
Management............................................. 63
Transactions in Capital Stock by Certain Persons.......... 65
Certain Transactions with Directors, Executive Officers
and Affiliates......................................... 67
Other Matters for Action at the Special Meeting........... 67
Proposals by Holders of Shares of Common Stock............ 67
Experts................................................... 68
WHERE YOU CAN FIND MORE INFORMATION......................... 69
Annex A -- Amended and Restated Agreement and Plan of
Merger.................................................... A-1
Annex B -- Opinion of Goldman, Sachs & Co................... B-1
Annex C -- Section 262 of the General Corporation Law of the
State of Delaware......................................... C-1
</Table>
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SUMMARY TERM SHEET
This summary term sheet highlights important information in this proxy
statement and does not contain all of the information that is important to you.
You should carefully read this entire proxy statement and the other documents we
refer you to for a more complete understanding of the matters being considered
at the special meeting. In addition, we incorporate by reference important
business and financial information about BancWest into this proxy statement. You
may obtain the information incorporated by reference into this proxy statement
without charge by following the instructions in the section entitled "Where You
Can Find More Information."
THE PROPOSED TRANSACTION
- In the merger, a wholly owned subsidiary of BNP Paribas will merge into
BancWest with BancWest continuing as the surviving corporation.
- As a result of the merger, we will cease to be an independent, publicly
traded company and will become a wholly owned subsidiary of BNP Paribas.
WHAT YOU WILL BE ENTITLED TO RECEIVE IN THE MERGER (SEE PAGE 50)
If we complete the merger:
- holders of our common stock will be entitled to receive $35 in cash,
without interest, for each share of common stock that they own, and
- holders of Class A common stock will retain their shares as Class A
common stock of the surviving corporation. BNP Paribas or its wholly
owned subsidiaries own all the outstanding shares of Class A common
stock.
After we complete the merger, holders of our common stock will no longer
own BancWest common stock, and BNP Paribas will be the sole stockholder of
BancWest.
RECOMMENDATIONS OF THE SPECIAL COMMITTEE AND OUR BOARD OF DIRECTORS (SEE PAGE
18)
Because BNP Paribas was making the merger proposal and nine of our twenty
directors are designees of BNP Paribas, our board of directors established a
special committee of independent directors to consider and evaluate the BNP
Paribas merger proposal. The special committee consists of five of our directors
who are not members of our management or affiliated with BNP Paribas. After
careful consideration, the special committee unanimously:
- determined that the merger agreement and the merger are fair to, and in
the best interests of, BancWest and unaffiliated holders of our common
stock, and
- recommended to our board of directors that it
- declare the merger agreement to be advisable,
- determine that the merger agreement and the merger are fair to and in
the best interests of BancWest and unaffiliated holders of our common
stock,
- approve the merger agreement, and
- recommend that our stockholders vote to adopt the merger agreement.
Based on this unanimous recommendation, our board of directors, by the
unanimous vote of all eleven directors not elected by BNP Paribas, determined
the merger agreement to be advisable and the merger agreement and the merger to
be fair to and in the best interests of BancWest and our unaffiliated public
stockholders. Accordingly, our board of directors, by the unanimous vote of all
eleven directors not elected by BNP Paribas, approved the merger agreement and
recommends that you vote "FOR" the proposal to adopt the
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merger agreement. Our board of directors makes no recommendation as to how you
should vote on the proposal to adjourn the special meeting.
For a discussion of the material factors considered by the special
committee and our board of directors in reaching their conclusions and the
reasons why the special committee and the board of directors determined that the
merger is fair, see "Special Factors -- Recommendations of the Special Committee
and Our Board of Directors; Fairness of the Merger."
OPINION OF GOLDMAN, SACHS & CO. (SEE PAGE 22)
In connection with the merger, the special committee and our board of
directors considered the opinion of the special committee's financial advisor,
Goldman, Sachs & Co. Goldman Sachs delivered its oral opinion to the special
committee on May 6, 2001, which was later confirmed in writing as of May 8,
2001. The opinion stated that as of the date of the opinion, the $35 per share
in cash to be received by the unaffiliated holders of our common stock in the
merger is fair from a financial point of view to those holders. The full text of
this opinion, which sets forth the assumptions made, matters considered and
limitations on the review undertaken by Goldman Sachs in connection with its
opinion, is attached as Annex B to this proxy statement. Goldman Sachs provided
its opinion for the information and assistance of the special committee in
connection with its consideration of the merger. Goldman Sachs' opinion is not a
recommendation as to how any holder of BancWest common stock should vote with
respect to the merger. We urge you to read that opinion in its entirety.
OUR POSITION AS TO THE FAIRNESS OF THE MERGER (SEE PAGE 18)
We believe the merger is fair to the unaffiliated holders of our common
stock. Many facts support this conclusion, including:
- the merger consideration of $35 in cash per common share represents a 40%
premium over the common stock's $24.98 closing price on May 4, 2001, the
last trading day before BNP Paribas' May 7, 2001 announcement of its
merger proposal;
- the merger was approved and recommended by the special committee and by
all eleven of our directors who were not elected by BNP Paribas; and
- Goldman Sachs delivered an opinion that, as of the date of the opinion,
the $35 per share in cash to be received by the unaffiliated holders of
our common stock is fair from a financial point of view to those holders.
BNP PARIBAS' AND CHAUCHAT'S POSITIONS AS TO THE FAIRNESS OF THE MERGER (SEE PAGE
28)
Although neither BNP Paribas nor its subsidiary, Chauchat, has performed or
engaged a financial advisor to perform any valuation analysis for the purpose of
assessing the fairness of the merger to unaffiliated holders of BancWest common
stock, both believe that the merger is substantively and procedurally fair to
unaffiliated holders of BancWest common stock. BNP Paribas and Chauchat believe
this conclusion is supported by the factors described above and by other
factors, including:
- the merger and the terms and conditions of the merger agreement were the
result of arm's-length negotiations between the special committee and BNP
Paribas and their respective advisors;
- the limitations on BNP Paribas' ability to act on a unilateral basis
contained in the standstill agreement between BancWest and BNP Paribas,
negotiated at the time of the 1998 merger of the former holding company
of Bank of the West and our predecessor, First Hawaiian, Inc., required
BNP Paribas to engage in an arm's-length negotiation with the special
committee; and
- the merger is conditioned upon adoption of the merger agreement by the
holders of no less than two-thirds of the shares of common stock and
Class A common stock outstanding and entitled to vote at the special
meeting, voting together as a single class. While BancWest may waive this
condition, BancWest has advised BNP Paribas that it has no present
intention of waiving this condition.
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INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS IN THE MERGER (SEE PAGE 37)
In considering the recommendation of our board of directors to adopt the
merger agreement so that the merger can occur, you should be aware that some of
our executive officers and members of our board of directors have interests in
the merger that may be different than the interests of our stockholders
generally. These interests include:
- due to the merger, all options on common stock issued under our stock
incentive plans will vest and become exercisable. Also, at the time of
the merger, BNP Paribas will cash out all the options on common stock at
a price equal to the excess, or the spread, of the $35 in cash per share
merger consideration over the per share exercise price of each option.
Our executive officers, four of whom are directors, hold options to
purchase a total of approximately 2.6 million shares and the aggregate
spread for these options is approximately $42.4 million.
- approximately 120 of our employees, including all of our executive
officers, participate in our long term incentive plan. Due to change in
control provisions in the plan, if the merger occurs every participant
will be entitled to receive his or her maximum possible award for each of
the three open cycles. As a result, if the merger is completed our
executive officers, four of whom are directors, will become entitled to
long term incentive plan awards totaling approximately $8.9 million.
- approximately 130 of our employees, including all of our executive
officers, participate in our supplemental executive retirement plan, or
SERP. If a participant is "involuntarily terminated" within 36 months of
the merger, that participant will be granted three extra years of
credited service under the SERP for purposes of calculating target
benefits, and those calculations will be based on the greater of covered
compensation over the 12 months before termination or the final average
compensation otherwise provided in the SERP. In addition, payment of the
participant's benefits will begin at the later of the date of termination
or age 55, unless the participant elects to delay receipt of change in
control benefits. If we were to complete the merger and then terminate
our named executive officers involuntarily on November 1, 2001, and each
such officer chose to delay receipt of retirement payments until age 62,
his annual SERP benefit would be approximately: Mr. Dods -- $817,481; Mr.
McGrath -- $614,095; Mr. Tsui -- $441,342; Mr. Karr -- $210,523; and Mr.
Horner -- $157,140.
- Walter A. Dods, Jr. has entered into an employment agreement with us that
will run for three years from the closing of the proposed merger. Mr.
Dods' employment agreement includes provisions for:
- a base salary of $1,030,403, subject to discretionary annual
increases;
- an annual performance bonus of up to 100% of his base salary which is
guaranteed to be at least 65% of his base salary (or $669,762 based on
his initial base salary);
- participation in incentive plans, including stock option or stock
purchase programs of BNP Paribas;
- participation in a new long term incentive plan, under which we will
have a target award of at least 50% of his base salary and a maximum
award opportunity that is at least 200% of the target award; and
- severance payments in the event his employment is terminated other
than for cause (or due to death or disability), Mr. Dods quits for
good reason or Mr. Dods quits with or without good reason during the
thirteenth month following a change of control subsequent to the
merger (the merger does not constitute a change of control for this
purpose). The amount of any severance payment will be a multiple of
Mr. Dods' base salary, bonus and incentive plan amount plus a pro rata
portion of the year of termination's annual target bonus and target
awards under the long term incentive plan. For example, if the merger
occurs and then on November 1, 2001 Mr. Dods is terminated without
cause, he would be entitled to a severance payment of $7,570,529 plus
a prorated portion of the target awards then in effect under long term
incentive plans adopted after the merger and under our annual bonus
program. Mr. Dods would also be entitled by his employment agreement
to three additional years of age and service credit under our pension
plans.
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- John K. Tsui, Howard H. Karr and Donald G. Horner, three of our executive
officers, are entitled to receive severance benefits under termination
protection agreements with us if, following the merger, their employment
is terminated without cause, the executive officers quit for good reason
or the executive officers quit with or without good reason during the
thirteenth month following a change of control subsequent to the merger.
The merger does not constitute a change of control for this purpose. The
amount of any severance payment will be a multiple of the executive's
base salary, bonus and incentive plan amounts plus a pro rata portion of
the year of termination's annual target bonus and target awards under the
long term incentive plan. For example, if the merger occurs and then on
November 1, 2001 Mr. Tsui, Mr. Karr or Mr. Horner is terminated without
cause, he would be entitled to a severance payment of $2,222,411,
$1,273,240, or $1,161,000, respectively, plus a prorated portion of his
target awards then in effect under any long term incentive plans adopted
after the merger and under our annual bonus program. Under these
circumstances, these officers would also be entitled by their termination
protection agreements to two years of additional age and service credit
under our pension plans (in addition to three years of credited service
under the SERP that would affect only Mr. Tsui's SERP benefits).
- nine of our directors are Class A directors elected by BNP Paribas. These
directors did not, however, participate in the vote by the board of
directors to approve the merger.
- after the merger, the surviving corporation will continue indemnification
arrangements and directors' and officers' liability insurance for our
present and former directors and officers.
- Messrs. Dods, Ganley, Haig and Weyand, directors of BancWest, serve as
trustees of the Estate of S. M. Damon. Under a statutory fee schedule,
they will be entitled to receive trustees' fees totaling about $15.9
million based on a percentage of the cash proceeds the Damon Estate
receives for its BancWest stock in the merger.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES (SEE PAGE 45)
The receipt of $35 in cash for each share of our common stock pursuant to
the merger will be a taxable transaction for U.S. federal income tax purposes.
For U.S. federal income tax purposes, each of our stockholders generally will
realize taxable gain or loss as a result of the merger measured by the
difference, if any, between $35 per share and the adjusted tax basis in that
share owned by the stockholder. For additional information regarding material
U.S. federal income tax consequences of the merger to our stockholders, see
"Special Factors -- Material U.S. Federal Income Tax Consequences of the Merger
to our Stockholders."
APPRAISAL RIGHTS (SEE PAGE 52)
Stockholders who do not wish to accept the $35 per share cash consideration
payable pursuant to the merger may seek, under Delaware law, judicial appraisal
of the fair value of their shares by the Delaware Court of Chancery. This value
could be more or less than or the same as the merger consideration of $35 in
cash per share. This "right of appraisal" is subject to a number of restrictions
and technical requirements. Generally, in order to exercise appraisal rights,
among other things:
- you must NOT vote in favor of the merger agreement;
- you must make a written demand for appraisal in compliance with Delaware
law BEFORE the vote on the merger agreement; and
- you must hold your shares of record continuously from the time of making
a written demand for appraisal until the effective time of the merger.
Merely voting against the merger agreement will not preserve your right of
appraisal under Delaware law. Also, since a submitted proxy not marked "against"
or "abstain" will be voted for the adoption of the merger agreement, the
submission of a proxy not marked "against" or "abstain" will result in the
waiver of appraisal rights. If you hold shares in the name of a broker or other
nominee, you must instruct your nominee to take the
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steps necessary to enable you to assert appraisal rights. If you or your nominee
fail to follow all of the steps required by the statute, you will lose your
right of appraisal.
Annex C to this proxy statement contains the Delaware statute relating to
your right of appraisal.
REGULATORY APPROVALS (SEE PAGE 55)
To complete the merger, we must obtain approval from the Federal Reserve
Board under Section 3 of the Bank Holding Company Act.
THE SPECIAL MEETING (SEE PAGE 47)
DATE, TIME, PLACE AND MATTERS TO BE CONSIDERED (SEE PAGE 47).
Our special meeting will be held in the Board Room, 30th Floor, First
Hawaiian Center, 999 Bishop Street, Honolulu, Hawaii on , 2001 at 9:00
a.m., local time. At the special meeting, you will be asked to vote on the
adoption of the merger agreement and a proposal to adjourn the special meeting,
if necessary, to solicit additional votes in favor of the adoption of the merger
agreement. A copy of the merger agreement is attached as Annex A to this proxy
statement.
RECORD DATE FOR VOTING (SEE PAGE 47).
You may vote at the special meeting if you owned shares of our common stock
or Class A common stock at the close of business on July 27, 2001. On that date,
there were 68,738,373 shares of our common stock and 56,074,874 shares of our
Class A common stock outstanding.
PROCEDURES RELATING TO YOUR VOTE AT THE SPECIAL MEETING (SEE PAGE 47).
Quorum Required.
- In order to have a quorum at the special meeting, a majority of the total
number of all outstanding shares of common stock and Class A common stock
as of the record date, counted together, must be present, in person or by
proxy.
Vote Required.
- In order to adopt the merger agreement under Delaware law and our
certificate of incorporation, we must obtain the affirmative vote of the
holders of a majority of the shares of common stock and Class A common
stock outstanding and entitled to vote at the special meeting, voting
together as a single class. In addition, we agreed with BNP Paribas in
the merger agreement that the holders of at least two-thirds of all
shares of common stock and Class A common stock outstanding and entitled
to vote at the special meeting, voting together as a single class, must
adopt the merger agreement before we can complete the merger. The
proposal to adjourn the special meeting must be adopted by the
affirmative vote of the holders of a majority of the shares of common
stock and Class A common stock present in person or by proxy and entitled
to vote on the proposal, voting together as a single class. Abstentions
and broker non-votes will have the effect of a vote "AGAINST" the
adoption of the merger agreement. Abstentions will have the same effect
as a vote against, and broker non-votes will have no effect on, any
proposal to adjourn the special meeting.
- BNP Paribas owns 56,074,874 shares of our Class A common stock,
representing approximately 45% of the total votes entitled to be cast on
the merger. BNP Paribas has agreed to vote all of its shares in favor of
the adoption of the merger agreement.
- On the record date for the meeting, our directors and executive officers
owned or controlled 16,801,559 shares of common stock, which was 13.5% of
our total voting stock outstanding. That amount included 15,200,000 common
shares (or about 12.2% of our total outstanding stock) that are owned by
the Estate of S.M. Damon. The Estate's affairs are managed by four
trustees, one of whom is our chief executive officer and all of whom serve
on our board of directors. The trustees have told us they presently intend
to vote the Estate's shares for adoption of the merger agreement. However,
they have no obligation to do so. BNP Paribas, our directors and executive
officers, and the Damon Estate thus
5
12
own or control a total of 72,876,433 voting shares, or about 58.4% of all
stock entitled to vote at the record date. If all those shares are voted
for the transaction, holders of about 10,324,078 additional common shares
(which is another 15% of our total common stock and another 8.3% of our
total voting shares) must vote for adoption of the merger agreement in
order for the transaction to occur.
Completion of Your Proxy Card.
- After carefully reading and considering the information contained in this
proxy statement, you should complete, date and sign your proxy card and
mail it in the enclosed return envelope as soon as possible so that your
shares are represented at the special meeting, even if you plan to attend
the meeting in person. You can also submit your proxy by telephone by
calling the number on your proxy card or over the Internet by going to
the web site designated on your proxy card. Unless you specify to the
contrary, all of your shares represented by valid proxies will be voted
"FOR" the adoption of the merger agreement and "FOR" the proposal to
adjourn the special meeting, if necessary, to solicit additional votes in
favor of the adoption of the merger agreement.
- If your shares are held in "street name" by your broker, your broker will
vote your shares, but only if you provide written instructions to your
broker on how to vote. You should follow the procedures provided by your
broker regarding how to instruct it to vote your shares. Without
instructions, your shares will not be voted by your broker and the
failure to vote will have the same effect as a vote against the adoption
of the merger agreement.
- DO NOT SEND IN YOUR STOCK CERTIFICATES WITH YOUR PROXY CARD.
Revocation of Your Proxy.
- Until exercised at the special meeting, you can revoke your proxy and
change your vote in any of the following ways:
- by delivering written notification to our Corporate Secretary at our
executive offices at 999 Bishop Street, Honolulu, Hawaii 96813;
- by delivering a proxy of a later date by mail, Internet or telephone;
- by attending the special meeting and voting in person. Your attendance
at the meeting will not, by itself, revoke your proxy; you must vote
in person at the meeting; or
- if you have instructed a broker to vote your shares, by following the
directions received from your broker to change those instructions.
Questions and Additional Information.
- For additional information regarding the procedure for delivering your
proxy see "The Special Meeting -- Voting and Revocation of Proxies" and
"-- Solicitation of Proxies."
- If you have more questions about the merger or how to submit your proxy,
or if you need additional copies of this proxy statement or the enclosed
proxy card or voting instructions, you should contact Georgeson
Shareholder Communications Inc. at 17 State Street, 10th Floor, New York,
New York 10004, or by telephone at 800-223-2064 or our Corporate
Secretary at our executive offices at 999 Bishop Street, Honolulu, Hawaii
96813, or by telephone at 808-525-8144.
ACCOUNTING TREATMENT (SEE PAGE 51)
We will account for the merger under the purchase method of accounting. For
a discussion of the accounting treatment for the merger see "The
Merger -- Accounting Treatment."
6
13
THE MERGER AGREEMENT (SEE PAGE 56)
CONDITIONS TO THE MERGER (SEE PAGE 56).
The completion of the merger depends on the satisfaction or waiver of a
number of conditions, including the following:
- we must obtain the affirmative vote of the holders of at least two-thirds
of all shares of common stock and Class A common stock outstanding and
entitled to vote at the special meeting, voting together as a single
class (BancWest has no present intention of waiving this condition);
- we must obtain all necessary regulatory approvals and those approvals
must be in full force and effect, other than those approvals the failure
of which to obtain would not reasonably be expected to have a material
adverse effect on the completion of the merger or the surviving
corporation;
- the regulatory approvals must not impose any condition that would
reasonably be expected to materially and adversely impact the surviving
corporation after the merger or materially reduce the benefits of the
merger to the extent that BNP Paribas would not have entered into the
merger agreement had the condition been known at the time;
- no legal prohibition to completion of the merger may be in effect;
- our and BNP Paribas' respective representations and warranties in the
merger agreement must be true and correct, subject to exceptions that
would not have a material adverse effect on the party making the
representations and warranties; and
- BancWest and BNP Paribas must each be in compliance in all material
respects with its respective covenants in the merger agreement.
TERMINATION OF THE MERGER AGREEMENT (SEE PAGE 58).
We and BNP Paribas may agree to terminate the merger agreement at any time
before the completion of the merger.
In addition, we or BNP Paribas may terminate the merger agreement by
written notice to the other if:
- any governmental entity that must grant a required regulatory approval
has denied approval of the merger and the denial has become final and
nonappealable, or any governmental entity of competent jurisdiction
issues a final and nonappealable injunction permanently enjoining or
otherwise prohibiting the merger, except that this right to terminate
will not be available to any party whose failure to comply with the
merger agreement causes or results in that action;
- the merger is not completed on or before January 30, 2002, except that
this right to terminate will not be available to any party whose failure
to comply with the merger agreement causes or results in the failure to
complete the merger by that date;
- the other party materially breaches a representation, warranty or
covenant in the merger agreement and the breach is not cured within 30
days after notice of the breach; or
- at the special meeting the merger agreement is not adopted by two-thirds
of the shares outstanding and entitled to vote at the special meeting.
BNP Paribas may terminate the merger agreement without our consent if:
- the special committee or our board of directors, by vote or consent of a
majority of the directors who were not elected by BNP Paribas, whom we
refer to as "non-Class A directors," either withdraws or changes its
recommendation for adoption of the merger agreement in a manner which is
adverse to BNP Paribas, or recommends to our stockholders any acquisition
proposal by a third party; or
- any required regulatory approval is granted subject to any final and
nonappealable conditions which would reasonably be expected to materially
and adversely impact the surviving corporation after the
7
14
merger or materially reduce the benefits of the merger so that BNP
Paribas would not have entered into the merger agreement had the
condition been known at the time.
We may terminate the merger agreement without BNP Paribas' consent before
obtaining stockholder approval if our board of directors, acting upon the
recommendation of the special committee, authorizes us to accept an acquisition
proposal from a third party concurrently with the termination. This right,
however, is subject to the following requirements:
- our board of directors must have complied with the provisions of the
merger agreement relating to solicitation of other offers,
- our board of directors, in consultation with the financial advisor to the
special committee, must have determined in good faith that the
acquisition proposal is superior to the merger from a financial point of
view and, other than with respect to obtaining stockholder approval, is
reasonably capable of being completed,
- BNP Paribas must have declined to offer a proposal superior to the
acquisition proposal, and
- we pay a fee to BNP Paribas as described below.
TERMINATION FEE (SEE PAGE 59).
The merger agreement provides that upon termination in specified
circumstances, we must pay a termination fee of $100 million to BNP Paribas.
INFORMATION ABOUT BANCWEST, BNP PARIBAS AND CHAUCHAT
- BancWest. We are a Delaware corporation and a bank holding company. We
are headquartered in Honolulu, Hawaii, and we have administrative
headquarters in San Francisco, California. We are the parent company of
Bank of the West and First Hawaiian Bank. We have 252 branches and serve
more than 1.1 million households and businesses in California, Hawaii,
Oregon, New Mexico, Nevada, Washington, Idaho, Guam and Saipan. Our
principal address is 999 Bishop Street, Honolulu, Hawaii 96813 and our
telephone number is 808-525-7000.
- BNP Paribas. BNP Paribas is a societe anonyme or limited liability
banking corporation organized under the laws of the Republic of France.
Headquartered in Paris, France, BNP Paribas is a world leader in banking
and financial services. It offers retail banking and financial services
(consumer credit, leasing, e-brokerage, insurance, car fleet management)
to millions of individual customers and corporations mainly in France,
Europe, the United States, the Mediterranean basin and Africa. BNP
Paribas' principal address is 16, boulevard des Italiens, 75009 Paris,
France, and its telephone number is 011-33-1-4014-7286. BNP Paribas is an
affiliate of ours by virtue of its ownership of approximately 45% of our
total outstanding capital stock.
- Chauchat L.L.C. Chauchat is a Delaware limited liability company and a
wholly owned subsidiary of BNP Paribas. Chauchat was formed for the
purpose of entering into the merger agreement and consummating the merger
and has not engaged in any business except in furtherance of the merger.
Chauchat's principal address is c/o French American Banking Corporation,
787 Seventh Avenue, New York, New York 10019 and its telephone number is
212-841-3197.
8
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SELECTED CONSOLIDATED FINANCIAL DATA OF BANCWEST
Set forth below is selected historical consolidated financial information
of BancWest and its subsidiaries. The historical financial information was
derived from the historical financial statements and related notes of BancWest.
Interim unaudited data for the three months ended March 31, 2001 and 2000
reflect, in the opinion of our management, all adjustments (consisting only of
normal recurring adjustments) necessary for a fair presentation of that data.
Results for the three months ended March 31, 2001 do not necessarily indicate
results that may be obtained for any other interim period or for the year as a
whole.
On July 1, 1999, we acquired SierraWest Bancorp. That merger was accounted
for as a pooling of interests. Therefore, all financial information has been
restated for all periods presented.
<Table>
<Caption>
AS OF OR FOR THE
THREE MONTHS ENDED
MARCH 31, AS OF OR FOR THE YEAR ENDED DECEMBER 31,
------------------- --------------------------------------------------------
2001 2000 2000 1999 1998 1997 1996
-------- -------- ---------- ---------- -------- -------- --------
(IN THOUSANDS)
INCOME STATEMENTS AND DIVIDENDS
Interest income................. $338,851 $301,387 $1,309,856 $1,135,711 $749,541 $651,048 $620,511
Interest expense................ 149,478 122,115 562,922 446,877 315,822 281,232 270,755
Net interest income............. 189,373 179,272 746,934 688,834 433,719 369,816 349,756
Provision for credit losses..... 35,200 12,930 60,428 55,262 30,925 20,010 25,048
Noninterest income.............. 98,499 50,037 216,076 197,632 134,182 110,550 95,575
Noninterest expense............. 150,088 131,577 533,961 535,075 392,075 322,171 296,567
Income before income taxes...... 102,584 84,802 368,621 296,129 144,901 138,185 123,716
Provision for income taxes...... 40,837 35,371 152,227 123,751 60,617 44,976 38,533
Net income...................... 61,747 49,431 216,394 172,378 84,284 93,209 85,183
Cash dividends.................. 23,687 21,187 84,731 77,446 40,786 41,116 38,946
Average shares outstanding...... 124,658 124,629 124,634 124,048 79,516 70,939 68,738
</Table>
<Table>
<Caption>
AS OF OR FOR THE
THREE MONTHS ENDED
MARCH 31, AS OF OR FOR THE YEAR ENDED DECEMBER 31,
------------------- --------------------------------------------------------
2001 2000 2000 1999 1998 1997 1996
-------- -------- ---------- ---------- -------- -------- --------
COMMON STOCK DATA, PER SHARE(1)
Basic earnings.................. $ 0.50 $ 0.40 $ 1.74 $ 1.39 $ 1.06 $ 1.31 $ 1.24
Diluted earnings................ 0.49 0.40 1.73 1.38 1.05 1.29 1.20
Cash dividends.................. 0.19 0.17 0.68 0.62 0.58 0.58 0.57
Book value...................... 16.40 15.00 15.97 14.79 14.15 11.30 10.85
Market price.................... 24.00 19.75 26.13 19.50 24.00 19.88 17.50
</Table>
<Table>
<Caption>
AS OF OR FOR THE
THREE MONTHS ENDED
MARCH 31, AS OF OR FOR THE YEAR ENDED DECEMBER 31,
------------------- --------------------------------------------------------
2001 2000 2000 1999 1998 1997 1996
-------- -------- ---------- ---------- -------- -------- --------
(IN MILLIONS)
BALANCE SHEETS
AVERAGE BALANCES:
Total assets.................... $ 18,874 $ 16,820 $ 17,600 $ 16,294 $ 10,033 $ 8,635 $ 8,306
Total earning assets............ 16,791 14,971 15,742 14,492 9,036 7,768 7,558
Loans and leases................ 14,146 12,655 13,286 12,291 7,659 6,477 5,907
Deposits........................ 14,253 12,814 13,380 12,517 7,710 6,541 6,102
Long-term debt and capital
securities.................... 1,013 704 964 790 354 279 265
Stockholders' equity............ 2,042 1,850 1,903 1,793 938 786 720
AT PERIOD END:
Total assets.................... $ 19,419 $ 17,528 $ 18,457 $ 16,681 $ 15,929 $ 8,880 $ 8,642
Loans and leases................ 14,203 12,856 13,972 12,524 11,965 6,792 6,243
Deposits........................ 14,710 13,326 14,128 12,878 12,043 6,790 6,507
Long-term debt and capital
securities.................... 1,031 704 967 802 734 324 218
Stockholders' equity............ 2,045 1,870 1,989 1,843 1,746 801 753
</Table>
9
16
<Table>
<Caption>
AS OF OR FOR THE
THREE MONTHS ENDED
MARCH 31, AS OF OR FOR THE YEAR ENDED DECEMBER 31,
------------------- --------------------------------------------------------
2001 2000 2000 1999 1998 1997 1996
-------- -------- ---------- ---------- -------- -------- --------
SELECTED RATIOS:
RETURN ON AVERAGE:
Total assets.................... 1.33% 1.18% 1.23% 1.06% 0.84% 1.08% 1.03%
Stockholders' equity............ 12.26 10.74 11.37 9.61 8.99 11.86 11.82
SELECTED OPERATING AND CASH
RATIOS(2): (ANNUALIZED)
RETURN ON AVERAGE:
Tangible total assets........... 1.62% 1.44% 1.48% 1.39% 1.19% 1.17% 1.11%
Tangible stockholders' equity... 22.26 19.92 20.32 19.70 16.31 15.14 14.94
OTHER SELECTED DATA:
Dividend payout ratio........... 38.78% 42.50% 39.31% 44.93% 55.24% 44.96% 47.50%
Average stockholders' equity to
average total assets.......... 10.82 11.00 10.81 11.00 9.35 9.10 8.67
Net interest margin............. 4.58 4.82 4.75 4.76 4.81 4.77 4.63
Net loans and leases charged off
to average loans and leases... 0.61 0.37 0.37 0.42 0.31 0.33 0.42
Efficiency ratio(3), (4)........ 52.90 53.36 51.53 54.47 62.50 65.53 64.54
AT PERIOD END:
RISK-BASED CAPITAL RATIOS: (ANNUALIZED)
Tier 1.......................... 9.10% 8.63% 9.73% 8.80% 8.32% 9.63% 8.49%
Total........................... 11.11 10.34 11.39 10.56 10.18 11.87 11.93
Tier 1 leverage ratio........... 8.48 8.18 9.09 8.11 9.13 9.09 7.24
Allowance for credit losses to
total loans and leases........ 1.31 1.27 1.23 1.29 1.32 1.33 1.46
Nonperforming assets to total
loans and leases and other
real estate owned and
repossessed personal
property...................... 0.90 0.96 0.86 1.01 1.11 1.42 1.68
Allowance for credit losses to
nonperforming loans and
leases........................ 1.72x 1.68x 1.84x 1.64x 1.61x 1.40x 1.15x
</Table>
- ---------------
(1) All per share data have been calculated to include both shares of common
stock and shares of Class A common stock and have been adjusted to give
retroactive effect to the two-for-one stock split in the fourth quarter of
1999.
(2) Defined as operating cash earnings as a percentage of average total assets
or average stockholders' equity minus average goodwill and core deposit
intangible.
(3) Excluding after-tax restructuring, merger-related and other nonrecurring
costs of:
(a) $755,000 recorded in 2000 for the acquisition of new branches in Nevada
and New Mexico completed in the first quarter of 2001,
(b) $11.6 million in connection with the acquisition of SierraWest Bancorp
and the consolidation of data centers in 1999, and
(c) $21.9 million in connection with the merger of the former BancWest
Corporation with and into First Hawaiian, Inc. on November 1, 1998.
(4) Excluding amortization of goodwill and core deposit intangible.
10
17
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Set forth below is the ratio of earnings to fixed charges for the three
months ended March 31, 2001 and 2000 and for each of the last five fiscal years.
For purposes of calculating the ratio of earnings to fixed charges, "earnings"
consists of earnings before equity in earnings of affiliates, taxes on earnings
and "fixed charges." "Fixed charges" consists of interest, amortization of debt
financing costs and the estimated interest components of rent and preferred
dividends.
<Table>
<Caption>
FOR THE
THREE MONTHS
ENDED
MARCH 31, FOR THE YEAR ENDED DECEMBER 31,
--------------- ------------------------------------------
2001 2000 2000 1999 1998 1997 1996
------ ------ ------ ------ ------ ------ ------
(ANNUALIZED)
RATIO OF EARNINGS TO FIXED CHARGES:
Excluding interest on deposits......... 4.13x 4.22x 4.07x 4.17x 2.92x 2.88x 2.58x
Including interest on deposits......... 1.67x 1.67x 1.64x 1.64x 1.44x 1.47x 1.45x
</Table>
TRADING MARKET AND PRICE; DIVIDENDS
Our common stock is traded on the New York Stock Exchange under the symbol
"BWE." The Class A common stock is not publicly traded. We have set forth below
our quarterly per share data, computed using the shares of common stock and
Class A common stock and restated for the effects of a two-for-one stock split
effective December 15, 1999:
<Table>
<Caption>
CASH SALES PRICE
DIVIDENDS ----------------
PAID HIGH LOW
--------- ------ ------
(PER SHARE)
2001
First Quarter........................................... $0.19 $27.25 $22.50
Second Quarter.......................................... 0.19 34.78 23.50
Third Quarter (through , 2001)......
2000
First Quarter........................................... $0.17 $19.75 $14.44
Second Quarter.......................................... 0.17 19.38 14.44
Third Quarter........................................... 0.17 20.19 16.44
Fourth Quarter.......................................... 0.17 26.13 17.25
1999
First Quarter........................................... $0.15 $24.25 $19.44
Second Quarter.......................................... 0.15 21.22 18.50
Third Quarter........................................... 0.15 22.03 18.56
Fourth Quarter.......................................... 0.17 22.75 19.06
</Table>
On May 4, 2001, the last full trading day prior to BNP Paribas'
announcement of its preliminary proposal to acquire us, the last reported sales
price per share of BancWest common stock was $24.98. On ,
2001, the most recent practicable trading day prior to the date of this proxy
statement, the last reported sales price per share was $ .
Stockholders should obtain current market price quotations for BancWest common
stock in connection with voting their shares.
11
18
Except as noted below, we agreed in the merger agreement not to, and to
cause our subsidiaries not to, declare or pay any dividend until the closing of
the merger without the prior written consent of BNP Paribas. However, we are
permitted under the merger agreement to declare and pay regular annual or
quarterly cash dividends consistent with past practice, not in excess of $0.19
per share per quarter, and our wholly owned subsidiaries may declare and pay
dividends in the ordinary course of business. We are also permitted, and intend,
to pay a pro rata dividend to holders of BancWest common stock based on the
number of days between the record date for the prior regular quarterly dividend
to the date the merger becomes effective. Although we expect to continue our
policy of paying quarterly cash dividends in compliance with the merger
agreement, the declaration and payment of cash dividends is subject to our
future earnings, capital requirements and financial condition. Further, the
primary source of funds that we use to pay dividends to stockholders is
dividends that we receive from our subsidiaries. Regulations limit the amount of
dividends Bank of the West and First Hawaiian Bank may declare or pay.
12
19
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The Securities and Exchange Commission encourages companies to disclose
forward-looking information so that investors can better understand a company's
future prospects and make informed investment decisions. These statements may be
made directly in this proxy statement referring to us, and they may also be made
a part of this proxy statement by reference to other documents filed by us with
the Securities and Exchange Commission, which is known as "incorporation by
reference." Any references to the Private Securities Litigation Reform Act in
BancWest's publicly filed documents which are incorporated in the proxy
statement by reference are specifically not incorporated by reference into this
proxy statement, and other forward-looking statements otherwise made in
connection with the merger, are not protected under the safe harbor provisions
of the Private Securities Litigation Reform Act.
Words such as "anticipate," "estimate," "expect," "project," "intend,"
"plan," "believe," "target," "objective," "goal" and words and terms of similar
substance used in connection with any discussion of future operating or
financial performance, or the acquisition of us by BNP Paribas, identify
forward-looking statements. Our forward-looking statements are based on
management's current views about future events and are subject to a number of
factors and uncertainties that could cause actual results to differ materially
from those described in the forward-looking statements. The following risks
related to our business, among others, could cause or contribute to actual
results differing materially from those described in the forward-looking
statements:
- global, national and local economic and market conditions, specifically
with respect to changes in the United States economy and the impact
recent increases in energy costs will have on the California economy;
- the level and volatility of interest rates and currency values;
- government fiscal and monetary policies;
- credit risks inherent in the lending process;
- loan and deposit demand in the geographic regions where we conduct
business;
- the impact of intense competition in the rapidly evolving banking and
financial services business;
- extensive federal and state regulation of our business, including the
effect of current and pending legislation and regulations;
- whether expected revenue enhancements and cost savings are realized
within expected time frames;
- whether Bank of the West is successful in retaining and further
developing loan, deposit, customer and employee relationships relating to
its recently acquired New Mexico and Nevada branches;
- matters relating to the integration of our business with that of past and
future merger partners, including the impact of combining these
businesses on revenues, expenses, deposit attrition, customer retention
and financial performance;
- our reliance on third parties to provide certain critical services,
including data processing;
- the proposal or adoption of changes in accounting standards by the
Financial Accounting Standards Board, the Securities and Exchange
Commission or other standard setting bodies;
- technological changes;
- other factors impacting our operational plans; and
- management's ability to manage risks that result from these and other
factors.
We caution you not to place undue reliance on our forward-looking
statements, which speak only as of the date of this proxy statement or the date
of the document incorporated by reference in this proxy statement. Except as
required by law, we are under no obligation, and expressly disclaim any
obligation, to update or alter any forward-looking statements, whether as a
result of new information, future events or otherwise.
For additional information about factors that could cause actual results to
differ materially from those described in the forward-looking statements, please
see the quarterly reports on Form 10-Q and the annual reports on Form 10-K that
BancWest has filed with the Securities and Exchange Commission as described
under "Where You Can Find More Information."
All forward-looking statements attributable to us or any person acting on
our behalf are expressly qualified in their entirety by the cautionary
statements contained or referred to in this section.
13
20
SPECIAL FACTORS
BACKGROUND OF THE MERGER
In November 1998, as a result of the Bank of the West merger, BNP Paribas
acquired all of the outstanding shares of Class A common stock of BancWest,
representing approximately 45% of the voting power of BancWest and entitling BNP
Paribas to elect nine of the twenty members of our board of directors. In
connection with this acquisition, BNP Paribas and BancWest entered into a
standstill and governance agreement. The standstill agreement is significant
because it governs our relationship with BNP Paribas and, without a waiver of
certain of its provisions approved by our directors not affiliated with BNP
Paribas, BNP Paribas would not have been permitted to make its proposal to
acquire your shares. Specifically, the standstill agreement contains provisions
restricting BNP Paribas' ability to make an offer to acquire the publicly held
shares of BancWest during a four-year standstill period that ends on November 1,
2002. During the standstill period, BNP Paribas was generally only permitted to
make a confidential offer to the executive committee of the board of directors
of BancWest, which the executive committee was under no obligation to consider
or cause to be submitted to the full board of directors. In order to permit BNP
Paribas to make its proposal, we waived those and other provisions in a limited
manner, as discussed below. The standstill restrictions are described in greater
detail under " -- Certain Relationships between BancWest and BNP Paribas."
During the Fall of 2000, members of BNP Paribas management undertook a
review of the development of its U.S. retail banking strategy, including
consideration of the desirability and feasibility of increasing its investment
in BancWest. In connection with its consideration of such a transaction, BNP
Paribas engaged Merrill Lynch & Co. as its financial advisor.
During the first week of February 2001, while attending a BNP Paribas
executive conference, Pierre Mariani, a director of BancWest and Executive Vice
President, International Retail Banking, of BNP Paribas, raised with Walter A.
Dods, Jr., Chairman and Chief Executive Officer of BancWest, the general
feasibility of a transaction whereby BNP Paribas would acquire all of the
publicly held shares of BancWest common stock. At that time, no specific terms
of a transaction were discussed although Mr. Dods indicated that if BNP Paribas
were to consider making such an offer, it should take into account that the
value offered to BancWest stockholders would need to be compelling in order to
convince the eleven independent directors to waive the standstill provisions. In
mid-March 2001, Mr. Mariani again raised with Mr. Dods the possibility of such a
transaction and suggested that if BNP Paribas were to determine to make an
offer, it would consider an offer in the range of about $32 in cash per share of
BancWest common stock. Mr. Dods indicated to Mr. Mariani that he personally did
not believe that a $32 per share offer would be compelling, but that BNP Paribas
should continue to evaluate whether it could offer greater value for the shares.
In addition, Mr. Mariani emphasized that in any transaction BNP Paribas might
propose, it would insist that current management of BancWest remain in place.
On April 2, 2001, the executive committee of the board of directors of BNP
Paribas met to review, among other things, BNP Paribas' U.S. retail strategy.
Among the options reviewed was the possibility of acquiring the publicly held
shares of BancWest. The executive committee authorized Mr. Mariani to ask Mr.
Dods to raise with the BancWest executive committee BNP Paribas' interest in
having exploratory discussions concerning a possible offer to acquire the
publicly held shares of BancWest common stock.
Following this meeting, Mr. Mariani telephoned Mr. Dods to suggest the
possibility of pursuing exploratory discussions with the BancWest executive
committee or a special committee of the board of directors consisting of
independent directors. Shortly thereafter, Mr. Dods called a meeting of the
executive committee of the board of directors of BancWest on April 6, 2001 at
which he described his discussions with Mr. Mariani and the desirability of
establishing a special committee of independent directors who are neither
designees of BNP Paribas nor members of management to be available to conduct
any such exploratory discussions with BNP Paribas concerning a possible offer to
acquire the publicly held common stock of BancWest. At the recommendation of Mr.
Dods, the BancWest executive committee appointed to the special committee John
A. Hoag (the chair), Dr. Julia Ann Frohlich, Bert T. Kobayashi, Jr., Fujio
Matsuda and Robert C. Wo, none of whom is employed by or affiliated with
BancWest or BNP Paribas or any of their
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respective affiliates (except in their respective capacities as directors of
BancWest). The executive committee gave the special committee full authority to
take any and all actions that the special committee determined in its judgment
to be necessary or advisable in connection with the receipt and evaluation of
any offer or proposal submitted by BNP Paribas or any other person to acquire
the publicly held common stock of BancWest. The special committee was also
authorized to retain financial, legal and other advisors to assist it at
BancWest's expense, and was expressly authorized to take any action it deemed
appropriate with respect to any BNP Paribas proposal or proposal from any other
party. Following the April 6 BancWest executive committee meeting, Mr. Dods
called each of the newly appointed members of the special committee to advise
them of their appointment and brief them on the discussions he had had to date
with Mr. Mariani.
On April 11, 2001, at a meeting of the special committee, Mr. Dods reviewed
with the special committee his initial discussions with Mr. Mariani regarding
BNP Paribas' interest in pursuing exploratory discussions concerning a possible
offer to acquire the publicly held shares of BancWest and the $32 price per
share raised by Mr. Mariani. Mr. Dods also discussed with the special committee
the fact that the special committee had been formed by the executive committee
in order to be in a position to evaluate any offer from BNP Paribas or any other
person should BNP Paribas or any other person make an offer at a later time. The
special committee determined that it would retain Simpson Thacher & Bartlett as
its legal advisor and Goldman, Sachs & Co. as its financial advisor. Both firms
had represented BancWest's predecessor company, First Hawaiian, Inc., for a
number of years prior to BNP Paribas' becoming a stockholder in it and had been
First Hawaiian's advisors in connection with the Bank of the West merger which
resulted in BNP Paribas becoming a stockholder of BancWest (the old First
Hawaiian). Accordingly, both firms were familiar with BancWest's business and
operations and with the standstill and other agreements between BancWest and BNP
Paribas.
At a meeting of the special committee on April 18, 2001, representatives of
Simpson Thacher & Bartlett reviewed with the special committee its role and
duties under applicable law in connection with any proposal BNP Paribas might
make to acquire the publicly held common stock of BancWest, the resolutions
establishing the special committee and the powers of the special committee.
Representatives of Simpson Thacher & Bartlett also reviewed the rights and
obligations of BancWest and the special committee under the terms of the
standstill and governance agreement if BNP Paribas requested permission to make
a proposal at the present time, compared to the rights and obligations if BNP
Paribas made an offer after the expiration of the standstill period. Simpson
Thacher & Bartlett noted in particular that under the standstill and governance
agreement, the special committee had the unconditional power to refuse to permit
BNP Paribas to submit a business combination proposal to either the special
committee or the board or to the stockholders of BancWest and that if the
special committee exercised this power, BNP Paribas would be contractually
prevented from proceeding with, or even publicly disclosing, any business
combination proposal for BancWest. Also at this meeting, representatives of
Goldman Sachs presented to and reviewed with the special committee relevant
financial information relating to BancWest and financial analyses with respect
to a cash offer at various prices, including the $32 price indicated by Mr.
Mariani in his conversation with Mr. Dods in early April. Each of Goldman Sachs
and management also discussed with the special committee their assessment of the
likelihood that (based on knowledge of the industry but without having made
specific inquiries) other financial institutions would be interested in making
an offer for BancWest, including at the valuations indicated by BNP Paribas.
Based on these discussions, the special committee concluded that it would not
contact (and would instruct its representatives not to contact) any other
financial institutions at this time. After lengthy discussion, the special
committee instructed its legal and financial advisors to inform BNP Paribas,
through its advisors, that the special committee would not consider a potential
offer of $32 in cash per share, if made, compelling enough to recommend a waiver
of the standstill agreement and that in order for the special committee to
consider such a waiver, BNP Paribas would need to improve the value of any such
offer significantly. After discussion with its advisors, the special committee
proposed $37 in cash per share as a price for BNP Paribas to consider. In
addition, in light of Mr. Mariani's statement regarding retention of key
executive officers, the special committee requested that its advisors determine
what type of assurance BNP Paribas would require from existing management as
well as BNP Paribas' position with respect to future incentive compensation for
employees of BancWest following any merger. The special committee also requested
that BNP Paribas advise it as to what measures BNP Paribas was prepared to take
to maintain First Hawaiian Bank's historic strong commitments to Hawaii and to
the Hawaii community.
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Over the next week, representatives of Goldman Sachs and Simpson Thacher &
Bartlett held numerous exploratory discussions with representatives of Merrill
Lynch & Co., BNP Paribas' financial advisor, and Cleary, Gottlieb, Steen &
Hamilton, BNP Paribas' legal counsel, regarding the financial and other terms of
any proposed offer and the actions required to be taken under the standstill
agreement before BNP Paribas would be willing to make such an offer. Mr. Dods
also held several conversations with Mr. Mariani to exchange additional detail
on the matters described above that had previously been raised by Mr. Mariani.
On April 27, 2001, at a telephonic meeting of the special committee,
representatives of Goldman Sachs and Simpson Thacher & Bartlett each updated the
special committee on the status of the exploratory discussions with BNP Paribas'
legal and financial advisors. Representatives of Goldman Sachs informed the
special committee that BNP Paribas continued to contemplate a potential
valuation of $32 in cash per share. The special committee instructed its
advisors to convey to BNP Paribas that it was essential to increase the
valuations being discussed in order for the special committee to recommend a
waiver of the standstill agreement so as to permit BNP Paribas to make an offer.
Later that day, BNP Paribas' counsel delivered to Simpson Thacher & Bartlett a
draft merger agreement reflecting the non-financial terms and conditions upon
which BNP Paribas would expect to make an offer, should it determine to do so.
On May 1, 2001, the special committee held a telephonic meeting with its
counsel and financial advisor so that it could be informed of developments with
respect to the exploratory discussions with BNP Paribas and to instruct its
counsel and financial advisor on how to respond to BNP Paribas. During this
discussion, representatives of Simpson Thacher & Bartlett reviewed with the
special committee the proposed terms of the draft merger agreement as well as
the terms of the executive employment arrangements proposed by BNP Paribas and
the terms of the other incentive compensation programs proposed to be
implemented by BNP Paribas following any potential transaction. BNP Paribas'
initial proposals with respect to maintaining First Hawaiian Bank's historic
commitment to the Hawaii community -- including a contribution of $5 million to
the First Hawaiian Foundation and BNP Paribas' intention to include
representation from Hawaii on the BancWest board of directors following the
merger, include substantial representation on the boards of First Hawaiian Bank
and Bank of the West of residents from each bank's market, and to maintain bank
headquarters in Hawaii -- were also discussed.
On May 3, 2001, at a telephonic meeting of the special committee,
representatives of Goldman Sachs reported that Merrill Lynch had informed them
that if BNP Paribas determined to make any offer, it would consider an offer of
$35 in cash per share of BancWest common stock. Goldman Sachs advised the
special committee that, pending review of final documents, it would expect to be
able to render an opinion that the price was fair from a financial point of view
to the holders of BancWest common stock. Also at that meeting, representatives
of Simpson Thacher & Bartlett updated the special committee as to the
negotiations relating to the provisions of the merger agreement and BNP Paribas'
current positions with respect to the management, employee, Hawaii commitment
and other issues being considered by the special committee. Representatives of
Simpson Thacher & Bartlett also reminded the special committee that, without a
waiver of the standstill agreement, BNP Paribas would be contractually prevented
from making a proposal for BancWest. The special committee then discussed the
possibility of recommending a limited waiver of the standstill agreement solely
to permit BNP Paribas to submit to the special committee a $35 per share cash
offer to purchase the publicly held shares of BancWest on the terms that BNP
Paribas had conveyed to the special committee through its advisors during the
exploratory discussions but which waiver would otherwise not change the
restrictions on BNP Paribas under the terms of the standstill agreement which
would continue to remain in effect. After full discussion, the special committee
unanimously determined to waive the standstill agreement in the limited manner
described, and on May 4, 2001, a written waiver was delivered to BNP Paribas.
The executive committee of the BNP Paribas board also met on May 3, 2001.
At this meeting, the committee was apprised of the discussions between BNP
Paribas and BancWest's special committee and the conditions it was anticipated
that BancWest would impose in connection with granting a waiver of the
standstill agreement. The BNP Paribas executive committee determined to
recommend to the full BNP Paribas board of directors that it consider making a
proposal to acquire the publicly held shares of common stock of BancWest should
the BancWest special committee agree to a waiver of the standstill agreement.
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On May 4, 2001, the board of directors of BNP Paribas met to consider
making a proposal to BancWest. During this meeting, management of BNP Paribas
described to the BNP Paribas board of directors the current restrictions on BNP
Paribas' ability to acquire 100% of BancWest and the structure of the proposal
the board was being asked to approve. Representatives of Merrill Lynch made a
presentation regarding U.S. regional bank market conditions and the financial
implications of the transaction under consideration. The board discussed the
strategic and financial implications of the transaction for BNP Paribas and
authorized management, subject to receipt of a waiver under the standstill
agreement, to submit a proposal to BancWest on terms consistent with those
discussed by the board. After the close of business on May 4, 2001 (New York
time), BNP Paribas submitted to the special committee a written proposal to
acquire all of the outstanding shares of common stock of BancWest for $35 in
cash per share and also delivered a proposed form of merger agreement. BNP
Paribas stated in the proposal letter that it would not consider reducing or
disposing of its interest in BancWest to a third party.
On May 6, 2001, the special committee met to consider the BNP Paribas
proposal with representatives of Simpson Thacher & Bartlett and Goldman Sachs
present. Also present at this meeting were all six of the non-Class A directors
who were not members of the special committee. At this meeting, representatives
of Goldman Sachs reviewed with the special committee its financial analysis with
respect to the proposed transaction and orally rendered its opinion as to the
fairness from a financial point of view to the holders of BancWest common stock
of the proposed $35 per share cash consideration. This opinion was later
delivered in writing. In addition, at this meeting, representatives of Simpson
Thacher & Bartlett reviewed the terms of the merger agreement with the special
committee. After full discussion and based on the factors described below, the
special committee unanimously determined that the merger agreement and the
merger were fair to and in the best interests of BancWest and the public holders
of BancWest common stock. The special committee then unanimously voted to
recommend to the full board of directors that it declare the merger agreement
advisable and the merger agreement and the merger to be fair to and in the best
interests of BancWest and its unaffiliated stockholders, approve the merger
agreement and recommend that the BancWest stockholders vote to adopt the merger
agreement.
Before the opening of business on May 7, 2001, BNP Paribas issued a press
release announcing its proposal and BancWest similarly issued a press release
stating that it had received the proposal from BNP Paribas and that the special
committee had unanimously determined to recommend the proposal to the full board
of directors of BancWest.
During the day on May 7, 2001, at the instruction of the special committee,
representatives of Goldman Sachs contacted other financial institutions that
potentially could have an interest in engaging in a business combination
transaction with BancWest to apprise them of the BNP Paribas proposal. None of
those financial institutions expressed an interest in pursuing a transaction
with BancWest.
On the evening of May 7, 2001 (Hawaii time), the board of directors of
BancWest met to consider the recommendation of the special committee with
respect to the BNP Paribas proposal. Representatives of Simpson Thacher &
Bartlett and Goldman Sachs were present at the meeting. Following a review of
BNP Paribas' proposal, the terms of the merger agreement, Goldman Sachs'
fairness opinion to the special committee and further discussions, the nine
Class A directors and the eleven non-Class A directors, voting as separate
classes as required by the standstill agreement, voted to approve a second
waiver of the standstill agreement to allow BNP Paribas to enter into the merger
agreement with BancWest. The board of directors, by a unanimous vote of all of
the directors not affiliated with BNP Paribas (constituting a majority of the
full board), and with the Class A directors present at the meeting abstaining,
then voted to approve the merger agreement, having determined it to be fair to
and in the best interests of BancWest and the unaffiliated holders of BancWest
common stock and to recommend adoption of the merger agreement by the BancWest
stockholders.
On May 8, 2001 (Paris time), the merger agreement was executed and the
agreement of the parties was publicly announced.
The merger agreement was amended and restated as of July 19, 2001 to
reflect some technical corrections, including the ability of BancWest to pay a
pro rata dividend to its stockholders.
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RECOMMENDATIONS OF THE SPECIAL COMMITTEE AND OUR BOARD OF DIRECTORS; FAIRNESS OF
THE MERGER
RECOMMENDATIONS OF THE SPECIAL COMMITTEE AND OUR BOARD OF DIRECTORS.
On May 6, 2001, the special committee unanimously determined that the terms
of the merger and the other transactions contemplated by the merger agreement
are fair to, and in the best interests of, BancWest and its unaffiliated
stockholders and unanimously determined to recommend that the board of directors
of BancWest:
- approve the merger agreement and the merger and the other transactions
contemplated by the merger agreement;
- determine that the terms of the merger agreement and the merger are fair
to, and in the best interests of, BancWest and its unaffiliated
stockholders;
- declare that the merger agreement is advisable; and
- recommend that BancWest's stockholders adopt the merger agreement.
At a meeting held on May 7, 2001, the board of directors of BancWest, by a
unanimous vote of the eleven non-Class A directors (with the eight Class A
directors present at the meeting abstaining) determined to accept the special
committee's recommendation and:
- approved the merger agreement and the merger and the other transactions
contemplated by the merger agreement;
- determined that the terms of the merger agreement and the merger are fair
to, and in the best interests of, BancWest and its unaffiliated
stockholders;
- declared that the merger agreement is advisable; and
- determined to recommend that BancWest's stockholders adopt the merger
agreement.
Neither the special committee nor the board of directors makes any
recommendation as to how you should vote with respect to the proposal to adjourn
the special meeting.
FAIRNESS OF THE MERGER.
Reasons for the Special Committee's Determination. In reaching the
conclusions described above, the special committee considered the following
material factors, each of which, in the special committee's judgment, supported
its conclusions as to fairness:
- the presentation from and the opinion delivered by Goldman, Sachs & Co.,
that, based upon and subject to the assumptions and limitations stated in
the opinion, as of the date of the opinion, the consideration to be
received by unaffiliated holders of shares of BancWest common stock
pursuant to the merger agreement is fair from a financial point of view
to such holders. The presentation of Goldman Sachs involved various
valuation analyses of BancWest that are described under "-- Opinion of
Goldman, Sachs & Co." The full text of the opinion of Goldman Sachs,
which sets forth assumptions made, matters considered and limitations on
the review undertaken in connection with the opinion, is attached as
Annex B to this proxy statement; we encourage stockholders to read the
opinion in its entirety;
- valuations of BancWest compared to its peer group using standard
valuation methodologies based on projected GAAP and cash earnings per
share. The special committee noted that BancWest generally traded at
prices consistent with its peer group based on these valuation
methodologies. The special committee also compared BancWest's financial
condition and operating performance to its peer group based on three key
financial ratios -- tangible common equity as a percentage of tangible
assets, cash return on average common equity, and efficiency ratio -- and
noted that BancWest was significantly below the median of its peer group
in terms of cash return on average common equity and consistent with the
median on the other two measures; see "-- Opinion of Goldman, Sachs &
Co.";
- the relationship of the consideration to be paid in the merger to the
recent and historical market prices of the BancWest common stock. The
special committee noted that the merger consideration of $35 per
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share of common stock represents a premium of 40.1% over the closing
price per share on May 4, 2001, the last trading day before BNP Paribas'
proposal was publicly announced, a 47.6% premium to the closing stock
price per share on April 4, 2001, one month before the public
announcement, and a 28.4% premium to the closing stock price per share on
January 29, 2001, the highest closing stock price ever of the common
stock before the public announcement of the BNP Paribas proposal;
- the relationship of the consideration to be paid in the merger compared
to prices paid in comparable bank mergers since 1997. The special
committee noted that the price proposed to be paid by BNP Paribas was
significantly above the median prices paid in the past several years based
on standard valuation methodologies (including price to last twelve
months' earnings per share; price to estimated next fiscal year earnings
per share; price to tangible book value per share; and premium to market
price); see "-- Opinion of Goldman, Sachs & Co.";
- the special committee's belief that, after extensive negotiations by and
on behalf of the special committee with BNP Paribas and its
representatives, BancWest had obtained the highest price per share that
BNP Paribas was willing to pay. The special committee formed its belief
based on statements made by BNP Paribas and its representatives during
the negotiations as well as the special committee's understanding of the
impact of the merger on BNP Paribas' earnings per share;
- BNP Paribas' beneficial ownership of approximately 45% of the currently
outstanding voting stock of BancWest and the effects of such ownership on
the alternatives available to BancWest. The special committee further
considered that BNP Paribas had stated that it would not consider
reducing or disposing of its interest in BancWest to a third party;
- the fact that BNP Paribas was currently restricted in making an offer to
acquire the publicly held shares of BancWest by the terms of the
standstill agreement with BancWest, which restriction would terminate in
November 2002. The special committee considered, after discussions with
representatives of Goldman Sachs and management of BancWest, whether or
not it was likely that a third party would make an offer for BancWest at
a value comparable to or in excess of that being offered by BNP Paribas.
As part of this analysis, the special committee took into account that,
under the terms of the standstill and governance agreement, if BNP
Paribas were to make an offer after the expiration of the standstill
period, BancWest would be permitted to seek third party offers for
BancWest and that BNP Paribas would be required to vote its shares in
favor of any superior offer received by BancWest if BNP Paribas chose not
to make a better proposal. Based on these discussions, the special
committee believed that it was unlikely to achieve better terms following
the expiration of the standstill period than those currently proposed by
BNP Paribas and there was no assurance that BNP Paribas or another
acquiror would be willing to make any offer in the future;
- the likelihood that the merger would be consummated, including the
absence of unusual requirements or conditions to the merger. The special
committee further considered that BNP Paribas has the financial capacity
to consummate the merger expeditiously;
- other provisions of the merger agreement, including the ability of
BancWest to, subject to specified conditions, (a) provide information to,
and negotiate with, a third party which makes an unsolicited acquisition
proposal for BancWest and (b) terminate the merger agreement if the
BancWest board of directors, acting upon the recommendation of the
special committee, accepts a superior proposal from a third party,
subject to the payment of a termination fee; and
- that fact that appraisal rights will be available under Delaware law with
respect to the merger.
Reasons for the Special Committee's Determination -- Net Book Value and
Going Concern Value. In reaching its conclusions described above, the special
committee also considered the following factors, each of which, in the special
committee's judgment, supported its conclusions as to fairness:
- Net Book Value. The special committee considered the relationship
between the $35 per share of cash consideration to be paid in the merger
to the per share tangible book value of BancWest of approximately $10.33
as of May 6, 2001. The special committee noted that this premium
represents an offer price to tangible book value ratio of approximately
3.4 to 1. This multiple was higher than the ratio of BancWest's trading
price to tangible book value of 2.4 to 1, the median trading price to
tangible
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book value for selected west coast banks of 2.8 to 1 and the median ratio
of share price to tangible book value for selected bank transactions from
1999 through 2001.
- Going Concern Value. The special committee considered the internally
generated forecasts for BancWest compiled by BancWest's management and the
risks associated with meeting those projections. After discussion with its
advisors and with BancWest management, the special committee believed that
the opportunity to achieve $35 per share in cash under the terms of the
merger agreement was a superior alternative to attempting to achieve value
in excess of $35 per share in cash as an independent publicly traded
company. In making this determination, the special committee considered
the outlook for the banking industry and the merger environment for
financial institutions generally. Some of the factors considered by the
special committee were the elimination of pooling accounting (which might
adversely affect both the level of merger activity and the prices that
acquirors are prepared to pay) and the impact of a slowing economy on
BancWest, including the risks of slowing revenue growth and rising levels
of non performing assets in the future. The special committee was also
aware that using certain assumptions, the discounted cash flow analysis
prepared by Goldman Sachs resulted in values greater than the $35 per
share in cash merger consideration; however the special committee also
recognized that achieving those higher values would require cash net
income multiples that would be significantly greater than the current
BancWest multiple and the median multiple of selected west coast banks.
Accordingly, the special committee did not regard these higher valuations
as likely to be obtainable under foreseeable circumstances. The special
committee also recognized that there were risks involved with the
assumptions contained in management's projections as well as the analyses
prepared by Goldman Sachs summarized below underlying an implied value of
BancWest common stock in excess of $35 per share in cash, including
achieving the financial results set forth in the forecasts as well as
market conditions occurring which would provide favorable valuation
multiples.
In making its recommendation to the full board of directors at the May 7
meeting, the special committee also noted that after the public announcement of
the BNP Paribas proposal that morning, no third party had contacted BancWest or
its advisors -- either on its own or subsequent to the telephone calls from
Goldman Sachs described above under "Background of the Merger" -- about the
possibility of discussing a business combination proposal with BancWest.
During its consideration of the transaction with BNP Paribas described
above, the special committee and the board of directors were also aware that
some of the directors and members of management of BancWest may have interests
in the merger that are different than or in addition to those of BancWest
stockholders generally, all as described under "-- Interest of Directors and
Executive Officers in the Merger."
Reasons for the Board's Determination. In reaching its determinations
referred to above, the board of directors of BancWest considered the following
material factors, each of which, in the view of the board of directors of
BancWest, supported its determinations as to fairness:
- the conclusions and recommendations of the special committee;
- the factors referred to above as having been taken into account by the
special committee, including the receipt by the special committee of the
opinion of Goldman Sachs that, based upon and subject to the assumptions
made, matters considered and limitations on review undertaken in
connection with its opinion, as of the date of the opinion, the per share
consideration to be received by the unaffiliated stockholders of BancWest
in the merger is fair from a financial point of view to such holders; and
- the fact that the merger consideration and the terms and conditions of
the merger agreement were the result of arm's-length negotiations between
the special committee and BNP Paribas and their respective advisors.
The board of directors considered the recommendation of the special
committee but made its own evaluation, based on the factors enumerated above and
below, of the substantive and procedural fairness of the merger.
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The members of the board of directors of BancWest, including the members of
the special committee, evaluated the merger in light of their knowledge of the
business, financial condition and prospects of BancWest, and considered the
advice of financial and legal advisors.
Procedural Fairness. The board of directors of BancWest, including the
members of the special committee, believes that the merger is procedurally fair
because, among other things:
- the special committee consisted of independent directors appointed to
represent the interests of unaffiliated BancWest stockholders and was
advised by independent financial and legal advisors;
- the executive committee of the board of directors delegated broad powers
to the special committee to conduct its evaluation of BNP Paribas' offer,
negotiate with BNP Paribas and consider alternatives to a transaction
with BNP Paribas. In addition to these broad powers, pursuant to the
terms of the standstill agreement, the special committee had the
unconditional ability to prohibit BNP Paribas from submitting a proposal
and to reject in its sole discretion any proposal it permitted BNP
Paribas to submit, and if the special committee took any of these
actions, BNP Paribas would be prohibited by the standstill agreement from
submitting its proposal to either the board of directors or the
stockholders of BancWest and, accordingly, that the terms of the
standstill agreement facilitated an arm's-length negotiation between the
special committee and BNP Paribas; and
- the per share price to be paid by BNP Paribas resulted from the active
arm's-length bargaining between representatives of the special committee,
on the one hand, and representatives of BNP Paribas, on the other.
- the board of directors of BancWest and the special committee recognized
that the merger is not conditioned on the adoption of the merger
agreement by the holders of a majority of the outstanding shares of
BancWest capital stock other than shares held by BNP Paribas and its
affiliates. However, the board of directors of BancWest and the special
committee noted that the merger agreement requires that holders of
66 2/3% of the outstanding shares of common stock and Class A common
stock, voting together as a single class, vote to adopt the merger
agreement. Although this super-majority vote can be waived by BancWest,
neither the special committee nor the board of directors has any present
intention of waiving this condition.
Neither the special committee nor the board of directors of BancWest
considered the liquidation value of BancWest because BNP Paribas had advised the
special committee and the board of directors that it intended to continue to
operate BancWest as a going concern after the merger and because liquidation
value is not a conventional method of evaluating financial services businesses.
Therefore, no appraisal of the liquidation values was sought for purposes of
evaluating the merger. In addition, neither the special committee nor the board
of directors of BancWest considered the purchase price paid in previous
purchases of BancWest common stock, as described under "Other
Matters -- Transactions in Capital Stock by Certain Persons -- BancWest
Purchases of Common Stock" because all of these purchases constituted share
repurchases from employees at prevailing market prices of stock they acquired
under various benefit plans.
In view of the wide variety of factors considered in connection with the
evaluation of the merger, neither the special committee nor the board of
directors of BancWest found it practicable to, and did not, quantify or
otherwise attempt to assign relative weights to the specific factors they
considered in reaching their determinations.
This discussion of the information and factors considered and given weight
by the special committee and the board of directors of BancWest is not intended
to be exhaustive but is believed to include all material factors considered by
the special committee and the board of directors of BancWest.
PRELIMINARY PRESENTATION BY GOLDMAN, SACHS & CO.
As noted above under "-- Background of the Merger," Goldman Sachs made a
preliminary presentation to the special committee on April 18, 2001. The
financial information and financial analyses presented to the special committee
at that meeting comprised a significant part of the information that ultimately
formed the basis for Goldman Sachs' opinion as described below under "-- Opinion
of Goldman, Sachs & Co." and were
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substantially the same as the information and analyses summarized in that
section (except that the April 18 materials included analyses of a transaction
at a variety of prices, rather than specifying the merger consideration of $35
per share that was ultimately negotiated).
OPINION OF GOLDMAN, SACHS & CO.
On May 6, 2001, Goldman Sachs delivered its opinion, subsequently confirmed
in writing on May 8, 2001, to the special committee of the BancWest board of
directors that, as of the date of its opinion and based upon and subject to the
considerations set forth in its opinion, the merger consideration of $35 in cash
per share to be received by the unaffiliated holders of BancWest common stock
under the merger agreement was fair from a financial point of view to those
stockholders.
The full text of the opinion, which sets forth the assumptions made,
procedures followed, matters considered and limits on the review undertaken, is
attached as Annex B to this proxy statement. The advisory services of Goldman
Sachs and the opinion were provided to the special committee for its information
and assistance in connection with its consideration of the merger and the
opinion is directed only to the fairness of the merger consideration from a
financial point of view to BancWest stockholders and does not constitute a
recommendation to any BancWest stockholder as to how that stockholder should
vote at the special meeting. The description of the opinion set forth below is
qualified in its entirety by reference to Annex B. We urge you to read the
opinion in its entirety.
In connection with its opinion, Goldman Sachs reviewed, among other things:
- the merger agreement;
- annual reports to stockholders and annual reports on Form 10-K of
BancWest for the five years ended December 31, 2000;
- annual reports to stockholders of BNP Paribas for the five years ended
December 31, 2000;
- specified interim reports to stockholders and quarterly reports on Form
10-Q of BancWest;
- specified interim reports to stockholders of BNP Paribas;
- specified other communications from BancWest to its stockholders;
- specified internal financial analyses and forecasts regarding BancWest
prepared by its management and approved by its management for use by
Goldman Sachs in connection with its opinion;
- the current and historical reported price and trading activity for shares
of BancWest common stock;
- specified financial and stock market information for BancWest, which it
compared with similar information for specified other companies in the
banking industry, the securities of which are publicly traded;
- the financial terms of specified recent business combinations in the
banking industry specifically and in other industries generally; and
- other information, studies and analyses as it considered appropriate in
the circumstances.
Goldman Sachs also held discussions with members of the senior management of
BancWest regarding their assessment of the past and current business operations,
financial condition and future prospects of and for BancWest.
Goldman Sachs relied upon the accuracy and completeness of all of the
financial, accounting and other information discussed with or reviewed by it and
assumed the accuracy and completeness of that information for purposes of
rendering its opinion. In that regard, Goldman Sachs assumed, with the special
committee's consent, that the internal financial forecasts prepared by the
management of BancWest were reasonably prepared reflecting the best currently
available estimates and judgments of BancWest. Goldman Sachs did not make any
independent evaluation or appraisal of the assets and liabilities of BancWest
(including off-balance sheet assets and liabilities) and neither BancWest nor
any other party provided Goldman Sachs with any such
22
29
evaluation or appraisal. Goldman Sachs noted that BNP Paribas owns 45% of the
outstanding capital stock of BancWest and has expressed no interest in a
business combination involving BancWest other than a transaction as a purchaser
of shares of BancWest capital stock.
The following is a brief summary of the material financial analyses
presented by Goldman Sachs to the special committee of the BancWest board of
directors and each of the other non-BNP Paribas directors who were also present
on May 6, 2001 in connection with providing its opinion.
THIS SUMMARY INCLUDES INFORMATION PRESENTED IN TABULAR FORMAT. THESE TABLES
ALONE ARE NOT A COMPLETE DESCRIPTION OF GOLDMAN SACHS' FINANCIAL ANALYSES. THESE
TABLES SHOULD BE READ TOGETHER WITH THE TEXT OF EACH SUMMARY.
SELECTED COMPANIES ANALYSIS.
Goldman Sachs reviewed and compared certain financial and stock market
information as well as certain asset, equity and profitability ratios of
BancWest with the following publicly traded commercial banking organizations:
<Table>
Wells Fargo & Company U.S. Bancorp
Comerica Incorporated Zions Bancorp
UnionBanCal Corporation City National Corporation
Pacific Century Financial Corp. Westamerica Bancorporation
Silicon Valley Bancshares Pacific Capital Bancorp
</Table>
The financial data used were as of the latest twelve months ended March 31,
2001 and the market data and earnings estimates were as of May 4, 2001.
Projected earnings per share were based on analysts' estimates from I/B/E/S
International, Inc., or I/B/E/S, an independent data service that compiles
earnings estimates of institutional securities research analysts.
The following table summarizes the results of the selected companies
analysis:
<Table>
<Caption>
SELECTED
COMPANIES
MEDIAN BANCWEST
--------- --------
Price to projected earnings multiple, based on estimates of
2001 GAAP earnings per share.............................. 13.2x 13.1x
Price to projected earnings multiple, based on estimates of
2002 GAAP earnings per share.............................. 11.1x 11.6x
Price to projected earnings multiple, based on estimates of
2001 cash earnings per share.............................. 11.9x 11.6x
Price to projected earnings multiple, based on estimates of
2002 cash earnings per share.............................. 10.4x 10.4x
Price to tangible book value per share multiple............. 2.8x 2.4x
Price to projected earnings multiple, based on estimates of
2002 earnings per share to projected five-year growth rate
of earnings per share..................................... 1.0x 1.4x
Tangible common equity as a percentage of tangible assets... 7.8% 6.9%
Cash return on average common equity........................ 27.2% 20.9%
Efficiency ratio (non-interest expense, excluding
non-recurring items and intangible amortization, divided
by the sum of net interest income and non-interest
income)................................................... 52.3% 51.4%
</Table>
23
30
MARKET HISTORY ANALYSIS.
Goldman Sachs compared the $35 in cash per share purchase price provided
for in the merger agreement with the closing price per share of BancWest common
stock on selected dates to identify the premium reflected by the $35 per share
purchase price. The selected dates, and the premiums, were as follows:
<Table>
<Caption>
BASIS FOR PREMIUM
DATE SELECTION TO MARKET
- ---------------- ---------------- ---------
January 29, 2001 All-time High 28.4%
June 23, 2000 52-week Low 150.0
May 4, 2001 One Day Prior* 40.1
April 27, 2001 One Week Prior* 40.9
April 4, 2001 One Month Prior* 47.6
</Table>
- ---------------
* Based on the date of preparation of the relevant materials.
PRO FORMA ANALYSIS.
Goldman Sachs analyzed the pro forma impact of the merger on earnings per
share of BNP Paribas to determine whether the transaction would be earnings
accretive or dilutive. In a cash transaction such as the present one, the
analysis of the estimated pro forma impact of a transaction on the other party
could indicate the degree to which a proposed acquisition price is attractive to
the other party. This analysis is therefore a factor that may indicate whether
the other side would be willing to consider further adjustments to a proposed
acquisition price. Based upon earnings estimates from the management of BancWest
and I/B/E/S median estimates of earnings for BNP Paribas (and management's
anticipation that there would be no meaningful cost or revenue synergies to BNP
Paribas from the transaction), this analysis indicated that as to GAAP earnings,
the merger would be earnings dilutive to holders of BNP Paribas common stock by
0.8% for 2001 and 0.4% for 2002. As to cash earnings per share, the same
analysis indicated that the merger would be earnings accretive to holders of BNP
Paribas common stock by 1.0% for 2001 and 1.3% for 2002.
DISCOUNTED CASH FLOW ANALYSIS.
Goldman Sachs performed two discounted cash flow analyses, which are
analyses of the present value of projected cash flows using discount rates and
forward earnings multiples, to determine a range of notional present values per
share of BancWest common stock. The range was determined using a dividend
discount model, with all cash flows discounted back to December 31, 2001. In
performing this analysis, Goldman Sachs used both I/B/E/S median estimates and
estimates provided by the management of BancWest. The I/B/E/S case projected
"Old" GAAP earnings per share of $1.90 and $2.15 for 2001 and 2002, respectively
and forecast a growth rate on earnings of 8.5% for 2003 - 2005, per I/B/E/S
long-term growth rate. The management case projected "Old" GAAP earnings per
share of $1.92, $2.10 and $2.30 for 2001, 2002, and 2003, respectively, and
forecast a growth rate on earnings of 10% for 2004 - 2005. "Old" GAAP earnings
are earnings that include the impact of goodwill amortization in BancWest's
earnings. Using discount rates ranging from 10% to 15%, and terminal price to
forward earnings value multiples ranging from 12.0x to 18.0x, the I/B/E/S case
resulted in a range of implied notional present values from $23.52 to $39.68 per
share of BancWest common stock and the management case resulted in a range of
implied notional present values from $24.15 to $40.79 per share of BancWest
common stock, as compared with the merger consideration of $35 in cash per share
of BancWest common stock provided for in the merger agreement. Goldman Sachs
used discount rates in this analysis that are commonly used by financial
advisors in conducting similar discounted cash flow analyses of commercial
banking organizations comparable to BancWest. The terminal forward earning
multiples used are consistent with current price earnings multiples for BancWest
and for other comparable commercial banking organizations.
24
31
The following table summarizes this analysis:
Implied notional present values per share based on I/B/E/S earnings
estimates:
<Table>
<Caption>
TERMINAL PRICE TO FORWARD EARNINGS MULTIPLE
--------------------------------------------
12X 14X 16X 18X
-------- -------- -------- --------
DISCOUNT 10.0% $27.80 $31.76 $35.72 $39.68
RATE 12.5 25.54 29.16 32.78 36.40
15.0 23.52 26.83 30.15 33.46
</Table>
Implied notional present values per share based on management earnings
projections:
<Table>
<Caption>
TERMINAL PRICE TO FORWARD EARNINGS MULTIPLE
--------------------------------------------
12X 14X 16X 18X
-------- -------- -------- --------
DISCOUNT 10.0% $28.55 $32.63 $36.71 $40.79
RATE 12.5 26.23 29.96 33.68 37.41
15.0 24.15 27.56 30.97 34.39
</Table>
SELECTED TRANSACTION ANALYSIS.
Goldman Sachs reviewed publicly available information for pending and
completed merger and acquisition transactions in the banking industry. The
selected transactions reviewed by Goldman Sachs comprised 30 transactions
completed or announced since January 1, 1997 and prior to May 6, 2001 with a
value greater than $1.0 billion, including the following 11 transactions
announced during 2000 and 2001, but excluding all merger of equals transactions
using the pooling of interests method of accounting:
2000 TRANSACTIONS:
- BB&T Corp./One Valley Bancorp Inc.
- Wells Fargo & Co./First Security Corp.
- M&T Bank Corp/Keystone Financial Inc.
- Chase Manhattan Corporation/J.P. Morgan & Co., Inc.
- FleetBoston Financial Corp./Summit Bancorp
- Firstar Corp./U.S. Bancorp
- Comerica Inc./Imperial Bancorp
- Fifth Third Bancorp/Old Kent Financial Corp.
2001 TRANSACTIONS (TO MAY 6, 2001):
- BB&T Corp./F&M National Corp
- Royal Bank of Canada/Centura Banks Inc.
- First Union Corp./Wachovia Corp.
The following table compares information with respect to the merger and the
medians for the selected transactions for the years indicated:
<Table>
<Caption>
MEDIAN OF SELECTED TRANSACTIONS ANNOUNCED IN THE YEAR
THE -------------------------------------------------------
MERGER 2001 2000 1999 1998 1997
------ ------- ------- ------- ------- -------
Price to last twelve months' earnings
per share............................. 19.0x 18.8x 15.0x 21.1x 27.8x 23.4x
Price to estimated next fiscal year
earnings per share.................... 18.40 15.90 13.30 19.00 20.80 20.10
Price to tangible book value per
share................................. 3.40 2.79 3.11 3.36 4.11 3.98
Premium to market price, one day prior
to announcement....................... 40.1% 29.5% 18.6% 26.4% 20.5% 22.4%
</Table>
25
32
The preceding discussion is a summary of the material financial analyses
that Goldman Sachs performed and presented to the special committee of the
BancWest board of directors on May 6, 2001, but it does not purport to be a
complete description of the analyses performed by Goldman Sachs or of its
presentation. The preparation of a fairness opinion is a complex process and is
not generally susceptible to partial analysis or summary description. Goldman
Sachs believes that selecting portions of the analyses or of the summary set
forth above, without considering the analyses as a whole, could create an
incomplete view of the processes underlying Goldman Sachs' opinion. In arriving
at its fairness determination, Goldman Sachs considered the results of all the
analyses and did not attribute any particular weight to any particular factor or
analysis considered by it. Rather, Goldman Sachs made its determination as to
fairness on the basis of its experience and professional judgment after
considering the results of all the analyses. No company used in the above
analyses as a comparison is directly comparable to BancWest and no transaction
used is directly comparable to the proposed merger.
In performing its analyses, Goldman Sachs made numerous assumptions with
respect to industry performance, general business, economic and regulatory
conditions and other matters, many of which are beyond the control of BNP
Paribas or BancWest. These analyses were prepared solely for purposes of Goldman
Sachs providing its opinion to the special committee of the BancWest board of
directors as to the fairness from a financial point of view of the merger
consideration of $35 in cash per share to be received by the holders of BancWest
common stock under the merger agreement. The analyses do not purport to be
appraisals or to reflect the prices at which businesses or securities actually
might be sold. The analyses performed by Goldman Sachs are not necessarily
indicative of actual values, trading values or actual future results, which may
be significantly more or less favorable than suggested by such analyses. Because
such estimates are inherently subject to uncertainty, being based upon numerous
factors or events beyond the control of BNP Paribas or BancWest or their
respective advisors, none of BNP Paribas, BancWest, Goldman Sachs or any other
person assumes responsibility if future results are materially different from
those forecasted. In addition, as described above, Goldman Sachs' opinion was
one of many factors taken into consideration by the special committee of the
BancWest board of directors in making its determination to approve the merger.
See "-- Recommendations of the Special Committee and Our Board of Directors;
Fairness of the Merger."
Goldman Sachs, as part of its investment banking business, is continually
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, competitive biddings,
secondary distributions of listed and unlisted securities, private placements
and valuations for estate, corporate and other purposes. The special committee
selected Goldman Sachs as its financial advisor because Goldman Sachs is an
internationally recognized investment banking firm that has substantial
experience in investment banking in general, including transactions similar to
the proposed merger, and because of its familiarity with, and prior work for,
BancWest. In addition, Goldman Sachs may from time to time effect transactions
with, or hold securities, including derivative securities, of, BancWest or BNP
Paribas or affiliated entities for its own account or for the accounts of
customers. Goldman Sachs is familiar with BancWest having provided certain
investment banking services to BancWest from time to time, including having
acted as financial advisor to First Hawaiian, Inc., predecessor to BancWest, in
connection with its merger with BancWest, then a wholly owned subsidiary of BNP
Paribas, in November 1998; having acted as BancWest's financial advisor in
connection with a block trade of 350,000 shares of BancWest common stock in June
1999; having acted as joint-bookrunning manager with respect to an offering of
$150 million aggregate principal amount of Quarterly Income Preferred Securities
of BancWest in December 2000; and having acted as financial advisor to the
special committee in connection with, and having participated in certain of the
negotiations leading to, the merger agreement. Goldman Sachs also has provided
certain investment banking services to BNP Paribas from time to time, including
having acted as financial advisor to BNP Paribas in connection with its
acquisition of Compagnie Financiere de Paribas SA in October 1999 and having
acted as joint-lead manager in connection with the offer of $500 million of
non-cumulative trust preferred securities of BNP Paribas in November 2000. In
addition, Goldman Sachs may provide investment banking services to BNP Paribas
in the future.
26
33
BancWest has agreed to pay Goldman Sachs an advisory fee equal to 0.25% of
the aggregate consideration paid in the transaction. Pursuant to the engagement
letter, BancWest (1) has paid Goldman Sachs $500,000 upon announcement of the
merger and (2) upon completion of the merger will pay Goldman Sachs a
transaction fee currently calculated to be approximately $6.13 million, reduced
by the fee previously paid at announcement. In addition, BancWest has agreed to
reimburse Goldman Sachs for its reasonable out-of-pocket expenses, including
attorneys' fees, incurred in connection with the services provided by it and to
indemnify and hold harmless Goldman Sachs and certain related parties from and
against certain liabilities and expenses, including certain liabilities under
the federal securities laws, incurred in connection with its engagement.
OUR FORECASTS
We do not, as a matter of course, publicly disclose forecasts as to future
revenues or earnings. However, we did prepare forecasts which we provided to
Goldman Sachs in connection with its fairness opinion analyses. We included the
forecasts in this proxy statement only because we provided that information to
Goldman Sachs and Goldman Sachs used the data in connection with its fairness
opinion and related presentation to the special committee. See "-- Opinion of
Goldman, Sachs & Co."
Our forecasts were not prepared with a view to public disclosure. We expect
the actual and forecasted results to differ, and actual results may be
materially different than those set forth below. We did not prepare the
forecasts with a view to complying with the published guidelines of the
Securities and Exchange Commission regarding forecasts, and we did not prepare
the forecasts in accordance with the guidelines established by the American
Institute of Certified Public Accountants for preparation and presentation of
financial forecasts. The projected financial information set forth below has
been prepared by and is the responsibility of our management. Moreover,
PricewaterhouseCoopers, our independent auditors, has not examined, compiled or
applied any procedures to the forecasts in accordance with standards established
by the American Institute of Certified Public Accountants and expresses no
opinion or any assurance on their reasonableness, accuracy or achievability. The
PricewaterhouseCoopers report which is incorporated by reference in this proxy
statement relates to our historical financial information. It does not extend to
the projected financial information and you should not read it to do so.
The projected financial information set forth below constitutes
forward-looking statements. It is not possible to predict whether the
assumptions made in preparing the forecasts will be valid, and we caution
stockholders that any such forward-looking statements are not guarantees of
future performance. We cannot assure you that our forecasts will be realized,
and actual results may be materially more or less favorable than those contained
in the forecasts set forth below. Investors should consider the risks and
uncertainties in our business that may affect future performance and that are
discussed under "Special Note Regarding Forward-Looking Statements" and in the
documents incorporated by reference in this proxy statement.
Our inclusion of the forecasts should not be regarded as an indication that
we, the special committee, our board of directors, BNP Paribas or any of our or
their respective financial advisors considered or consider the forecasts to be a
reliable prediction of future events, and the forecasts should not be relied
upon as such. To the extent that our forecasts represent our management's best
estimate of possible future performance, this estimate is made only as of the
date of the forecasts and not as of any later date. We do not intend to update,
27
34
revise or correct these forecasts if they become inaccurate. Stockholders should
take this into account when evaluating any factors or analyses based on our
forecasts.
<Table>
<Caption>
FISCAL YEARS ENDED DECEMBER 31,
---------------------------------------
2001 2002 2003
--------- ----------- -----------
($ IN MILLIONS, EXCEPT DILUTED EARNINGS
PER SHARE)
Operating Revenues.......................................... $983.3 $1,113.8 $1,202.7
Net Income.................................................. 241.8 265.2 293.2
Pre-tax Income.............................................. 403.0 442.1 488.7
Diluted Earnings Per Share
-- Reported............................................... 1.92 2.10 2.30
-- Operating.............................................. 1.93 2.10 2.30
-- Cash................................................... 2.20 2.36 2.56
</Table>
- ---------------
Source: BancWest management.
BNP PARIBAS' AND CHAUCHAT'S POSITIONS AS TO THE FAIRNESS OF THE MERGER
BNP Paribas and Chauchat believe that the merger is substantively and
procedurally fair to unaffiliated holders of BancWest common stock. However,
neither BNP Paribas nor Chauchat has performed or engaged a financial advisor to
perform any valuation analysis for the purpose of assessing the fairness of the
merger to unaffiliated holders of BancWest common stock. Moreover, neither BNP
Paribas nor Chauchat participated in the deliberations of the special committee
or received advice from the special committee's financial advisor.
BNP Paribas' and Chauchat's belief that the merger is substantively fair to
unaffiliated holders of BancWest common stock is based on the following factors,
each of which BNP Paribas and Chauchat consider to support their belief:
- the conclusions and recommendations of the special committee that the
merger is fair to, and in the best interests of, unaffiliated holders of
BancWest common stock;
- the fact that the special committee received an opinion from Goldman
Sachs stating that, based upon and subject to the assumptions and
limitations contained in the opinion, the $35 per share merger
consideration to be received by the holders of BancWest common stock
pursuant to the merger agreement is fair from a financial point of view
to those holders;
- the merger consideration of $35 per share of BancWest common stock
represents a 40.1% premium over the closing price per share on May 4,
2001, the last trading day before BNP Paribas' proposal was publicly
announced, a 47.6% premium to the closing stock price per share on April
4, 2001, one month before the public announcement, and a 28.4% premium to
the closing stock price per share on January 29, 2001, the highest
closing stock price ever of the BancWest common stock before the public
announcement of the BNP Paribas merger proposal;
- the consideration to be paid in the merger represents a multiple of
almost 17 times BancWest's cash earnings per share for the twelve months
ended April 30, 2001;
- the consideration to be paid in the merger represents a multiple of 2.1
times BancWest's book value per share of approximately $16.40 and 3.4
times BancWest's tangible book value per share of approximately $10.33;
- with respect to going concern value, the fact that, based upon the
analyses of Merrill Lynch described below under "Summary of Financial
Analyses of Merrill Lynch & Co. -- Precedent Transaction Analysis," the
transaction multiples represented by the $35 per share merger
consideration were generally within the ranges implied by such analyses
(although one ratio was slightly higher and one ratio was slightly lower).
In addition, BNP Paribas noted the conclusion of the special committee,
based upon BancWest's internally generated forecasts not available to BNP
Paribas, that the
28
35
opportunity to achieve $35 per share in cash under the terms of the merger
agreement was a superior alternative to the BancWest shareholders to
attempting to achieve value in excess of $35 per share in cash as an
independent publicly traded company as described above under
"Recommendations of the Special Committee and Our Board of Directors;
Fairness of the Merger -- Recommendations of the Special Committee and Our
Board of Directors."
- the merger will provide consideration to BancWest common stockholders
entirely in cash; and
- the likelihood that the merger will be consummated, including the absence
of unusual requirements or conditions to the merger, including any
financing conditions.
BNP Paribas' and Chauchat's belief that the merger is procedurally fair to
unaffiliated holders of BancWest common stock is based on the following factors:
- the merger and the terms and conditions of the merger agreement were the
result of arm's-length negotiations between the special committee and BNP
Paribas and their respective advisors;
- the limitations in the standstill agreement on BNP Paribas' ability to
act on a unilateral basis required BNP Paribas to engage in an
arm's-length negotiation with the special committee;
- although the merger is not conditioned upon approval by the holders of a
majority of outstanding shares other than shares held by BNP Paribas, the
merger is conditioned upon adoption of the merger agreement by the
holders of no less than two-thirds of the shares of common stock and
Class A common stock outstanding and entitled to vote at the special
meeting, voting together as a single class. Although this super-majority
vote could be waived by BancWest, BancWest has advised BNP Paribas that
neither the special committee nor the board of directors of BancWest has
any present intention of waiving this condition;
- the special committee retained and was advised by independent legal
counsel and an independent financial advisor, Goldman Sachs, and the
special committee received a fairness opinion from Goldman Sachs as to
the $35 in cash per share merger consideration;
- the merger was unanimously approved by all members of BancWest's board of
directors who are not affiliates of BNP Paribas or BancWest employees;
and
- holders of common stock who do not vote in favor of the merger will have
the right to demand a judicial appraisal of their shares if they take the
actions necessary to perfect their rights.
BNP Paribas and Chauchat considered each of the foregoing factors to
support their determinations as to the fairness of the merger. Neither BNP
Paribas nor Chauchat found it practicable to assign, nor did it assign, relative
weights to the individual factors considered in reaching its conclusion as to
fairness. The liquidation of BancWest's assets was not considered to be a viable
course of action based on BNP Paribas' desire for BancWest to continue as a
subsidiary of BNP Paribas. Therefore, no appraisal of liquidation value was
sought for purposes of valuing the shares of BancWest common stock. In addition,
BNP Paribas and Chauchat did not consider the purchase prices paid in previous
purchases of BancWest stock, as described in "Other Matters -- Transactions in
Capital Stock by Certain Persons -- BNP Paribas and Chauchat Purchases of Common
Stock" to be a material factor in their consideration of the merger, because the
prices paid in those stock purchases may not reflect the value of BancWest as a
whole. None of the factors considered by BNP Paribas and Chauchat failed to
support their belief in the fairness of the merger.
Although Merrill Lynch generally assisted BNP Paribas in connection with
the merger and, in particular, analyzed the financial aspects of the proposed
merger, Merrill Lynch was not requested to, and did not, deliver any opinion to
either holders of BancWest common stock or BNP Paribas as to the fairness of the
$35 per share which the unaffiliated holders of BancWest common stock will be
entitled to receive in the merger.
The view of BNP Paribas and Chauchat as to the fairness of the merger is
not a recommendation to any stockholder as to how such stockholder should vote
on the merger. The foregoing discussion of the information and factors
considered and weight given by BNP Paribas and Chauchat is not intended to be
exhaustive but is believed to include all material factors considered by BNP
Paribas and Chauchat.
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36
SUMMARY OF FINANCIAL ANALYSES OF MERRILL LYNCH & CO.
In connection with its consideration of a potential transaction, BNP
Paribas engaged Merrill Lynch as its financial advisor. On May 4, 2001, Merrill
Lynch made a presentation to the board of directors of BNP Paribas. The
following is a summary of the material financial analyses furnished by Merrill
Lynch to the board of directors of BNP Paribas. However, it does not purport to
be a complete description of the analyses performed by Merrill Lynch or of its
presentation to BNP Paribas' board of directors. The analyses performed by
Merrill Lynch were for the purpose of assisting BNP Paribas in assessing the
financial and strategic implications of any potential transaction for BNP
Paribas and the likelihood that a proposal made by BNP Paribas would be
acceptable to BancWest. BNP PARIBAS DID NOT REQUEST, AND MERRILL LYNCH DID NOT
PROVIDE, ANY OPINION TO EITHER BNP PARIBAS OR THE HOLDERS OF BANCWEST COMMON
STOCK AS TO THE FAIRNESS OF THE MERGER CONSIDERATION OF $35 PER SHARE TO BE
RECEIVED BY THE UNAFFILIATED HOLDERS OF BANCWEST COMMON STOCK OR ANY VALUATION
OF BANCWEST FOR THE PURPOSE OF ASSESSING THE FAIRNESS OF THE MERGER.
THE FOLLOWING SUMMARY IS INCLUDED HERE ONLY FOR INFORMATIONAL PURPOSES AND
TO COMPLY WITH APPLICABLE SECURITIES AND EXCHANGE COMMISSION DISCLOSURE
REQUIREMENTS.
Some of the summaries of financial analyses described below include
information presented in tabular format. In order to understand fully the
financial analyses performed by Merrill Lynch, the tables must be read together
with the text of each summary. The tables alone do not constitute a complete
description of the financial analyses performed by Merrill Lynch. The following
quantitative information, to the extent it is based on market data, is, except
as otherwise indicated, based on market data as it existed on or prior to May 2,
2001, and is not necessarily indicative of current or future market conditions.
COMPARATIVE STOCK PRICE PERFORMANCE.
Merrill Lynch reviewed with the board of directors of BNP Paribas the
recent stock price performance of Standard & Poor's index of U.S. regional
banks, commonly referred to as the S&P Regional Banks Index, and compared this
performance with that of Standard & Poor's index of 500 industrial stocks,
commonly referred to as the S&P 500 Index, and Nasdaq.
Merrill Lynch observed that during the periods from (1) December 31, 1999
through December 29, 2000 and (2) January 1, 2001 through May 2, 2001, the
closing market prices appreciated and depreciated as set forth below:
<Table>
<Caption>
PERCENT APPRECIATION/(DEPRECIATION)
------------------------------------
12/31/99-12/29/00 1/1/01-5/2/01
------------------ --------------
S&P Regional Banks Index...................... 24.5% (6.9)%
S&P 500 Index................................. (10.1) (4.0)
Nasdaq........................................ (39.3) (10.1)
</Table>
In addition, Merrill Lynch noted to the BNP Paribas board of directors that
over the last twelve months, the S&P Regional Banks Index appreciated 20% as
compared to the S&P 500 Index, which depreciated 13.7% during the same period.
HISTORICAL STOCK PRICE PERFORMANCE.
Merrill Lynch reviewed and analyzed the daily closing per share market
prices and trading volumes for BancWest common stock from November 1, 1998
through May 2, 2001. The following table sets forth the
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37
results of this analysis, adjusted for the stock split of BancWest common stock
effective on December 15, 1999:
<Table>
<Caption>
CLOSING PRICE
NOVEMBER 1, 1998 THROUGH MAY 2, 2001 PER SHARE
- ------------------------------------ -------------
High (January 29, 2001)..................................... $27.25
Low (February 25, 2000)..................................... 14.44
52-Week High................................................ 27.25
52-Week Low................................................. 14.44
2-Year Average.............................................. 20.29
1-Year Average.............................................. 21.14
6-Month Average............................................. 24.90
3-Month Average............................................. 25.25
Last (May 2, 2001).......................................... 25.09
</Table>
COMPARABLE PUBLIC COMPANIES ANALYSIS.
Merrill Lynch reviewed and compared certain financial information and
public market trading multiples relating to BancWest to corresponding financial
data for comparable publicly traded U.S. regional banks.
The group of comparable public companies reviewed included: Commerce
Bancshares, Inc., Compass Bancshares, Inc., Cullen Frost Bankers Inc., Pacific
Century Financial Corp., Provident Financial Group, Inc., Trustmark Corporation,
UnionBanCal Corporation and Westamerica Bancorporation.
For each of these comparable companies and for BancWest, Merrill Lynch
calculated and compared, among other things, the ratio of the closing stock
price on May 2, 2001 to:
- the next twelve months' estimated earnings per share;
- the next twelve months' estimated cash earnings per share;
- March 31, 2001 book value per share; and
- March 31, 2001 tangible book value per share.
The following table reflects the results of the analysis:
<Table>
<Caption>
COMPARABLE COMPANIES
----------------------
RATIO OF CLOSING STOCK PRICE ON MAY 2, 2001 TO: BANCWEST LOW MEAN HIGH
- ----------------------------------------------- -------- ---- ----- -----
Next twelve months' estimated earnings per
share........................................... 12.67x 9.51x 12.50x 15.61x
Next twelve months' estimated cash earnings per
share........................................... 10.86 9.25 11.80 15.15
March 31, 2001 book value per share............... 1.53 1.32 2.11 3.99
March 31, 2001 tangible book value per share...... 2.43 1.45 2.35 4.25
</Table>
For purposes of this analysis, Merrill Lynch relied on publicly available
financial information, SNL Securities estimates and First Call estimates.
No company used in the comparable public companies analysis is identical to
BancWest. Accordingly, an analysis of the results of the foregoing necessarily
involves complex considerations and judgments concerning differences in
financial and operating characteristics of BancWest and other factors that could
affect the public trading value of the companies to which they are being
compared. In evaluating the comparable companies, Merrill Lynch made judgments
and assumptions with regard to industry performance, general business, economic,
market and financial conditions and other matters, many of which are beyond the
control of BNP Paribas and BancWest. These judgments and assumptions include:
- the impact of competition on BNP Paribas, BancWest and the industry
generally,
- industry growth and
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38
- the absence of any adverse material change in the financial conditions
and prospects of BNP Paribas, BancWest or the industry or in the
financial markets in general.
Mathematical analysis, including determining the average or median, is not
itself a meaningful method of using publicly traded comparable company data.
PRECEDENT TRANSACTION ANALYSIS.
Merrill Lynch reviewed publicly available financial, operating and stock
market information for four selected merger and acquisition transactions in the
regional banking industry involving the acquisition of a publicly traded company
with a value ranging from $1 billion to $5 billion. The precedent transactions
reviewed were:
<Table>
<Caption>
DATE OF ANNOUNCEMENT ACQUIROR TARGET
- -------------------- -------- ------
01/26/01 Royal Bank of Canada Centura Banks, Inc.
01/24/01 BB&T Corporation F&M National Corp.
11/20/00 Fifth Third Bancorp Old Kent Financial Corporation
11/01/00 Comerica Incorporated Imperial Bancorp
</Table>
For each of these precedent transactions, Merrill Lynch derived, among
other things, the ratio of per share announced transaction value to:
- last twelve months' GAAP earnings per share,
- next twelve months' estimated GAAP earnings per share,
- last twelve months' cash earnings per share,
- next twelve months' estimated cash earnings per share,
- book value per share and
- tangible book value per share .
The following table sets forth the results of these calculations:
<Table>
<Caption>
PRECEDENT TRANSACTIONS
--------------------------------
RATIO OF PER SHARE ANNOUNCED TRANSACTION VALUE TO: RANGE MEAN MEDIAN
- -------------------------------------------------- ------------- ----- ------
Last twelve months' GAAP earnings per share.......... 15.70x-21.18x 17.59x 16.74x
Next twelve months' estimated GAAP earnings per
share.............................................. 14.20 -19.55 16.05 15.22
Last twelve months' cash earnings per share.......... 14.69 -20.48 17.12 16.66
Next twelve months' estimated cash earnings per
share.............................................. 13.37 -18.95 15.66 15.16
Book value per share................................. 2.38 - 2.95 2.65 2.64
Tangible book value per share........................ 2.42 - 3.25 2.90 2.96
</Table>
Merrill Lynch then compared the multiples that it obtained from its
precedent transactions analysis to similar multiples of BancWest assuming a
price of $35 in cash per share of BancWest common stock. The following table
sets forth the results of this comparison:
<Table>
<Caption>
AVERAGE MULTIPLES IN
RATIO OF PER SHARE ANNOUNCED TRANSACTION VALUE TO: BANCWEST PRECEDENT TRANSACTIONS
- -------------------------------------------------- -------- ----------------------
Last twelve months' cash earning per share...... 16.99x 17.12x
Next twelve months' estimated cash earnings per
share......................................... 15.15 15.66
Next twelve months' estimated GAAP earnings per
share......................................... 17.68 16.05
Book value per share............................ 2.13 2.65
Tangible book value per share................... 3.39 2.90
</Table>
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No company or transaction used in the analysis of selected precedent
transactions is identical to the merger in both timing and size. Accordingly, an
analysis of the results of the foregoing necessarily involves complex
considerations and judgments concerning differences in financial and operating
characteristics of BancWest and other factors that would affect the acquisition
value of the companies to which it is being compared. In evaluating the
precedent transactions, Merrill Lynch made judgments and assumptions with regard
to industry performance, general business, economic, market and financial
conditions and other matters, many of which are beyond the control of BNP
Paribas and BancWest. These judgments and assumptions include:
- the impact of competition on the business of BNP Paribas, BancWest and
the industry generally,
- industry growth and
- the absence of any material adverse change in the financial conditions
and prospects of BNP Paribas, BancWest, the industry or in the financial
markets in general. Mathematical analysis, including determining the
average or median, is not itself a meaningful method of using comparable
transaction data.
INTERNAL RATE OF RETURN ANALYSIS.
Merrill Lynch also analyzed the internal rates of return for a potential
purchase of BancWest by BNP Paribas on a total investment going forward basis,
including the acquisition of the 55% of BancWest not currently owned by BNP
Paribas. For purposes of this analysis, Merrill Lynch relied on First Call
estimated earnings for the fiscal years 2001 and 2002 and First Call estimated
earnings per share growth of 9% after 2002. In addition, Merrill Lynch assumed
that there would be no synergies in the proposed transaction and that earnings
in excess of those necessary to maintain BancWest's tangible common equity ratio
at 6% may be paid out as dividends to holders of BancWest common stock.
Merrill Lynch calculated the cash outflow as follows:
- 45% of BancWest currently owned by BNP Paribas at the market value on May
2, 2001 and
- 55% of BancWest not currently owned by BNP Paribas at the offer price of
$35 per share.
Merrill Lynch then calculated the cash inflows, which represent the sum of the
dividends distributed over a five-year period and the terminal value at the end
of fifth year. The terminal value at the end of the fifth year is calculated as
a multiple of estimated next twelve months' cash earnings. The following table
sets forth the results of this analysis.
<Table>
<Caption>
TERMINAL VALUE
MULTIPLE OF NEXT
TWELVE MONTHS'
CASH EARNINGS
----------------
12.0X 13.0X
------ ------
Internal Rate of Return..................................... 12.34% 13.83%
</Table>
Merrill Lynch noted that at a price of $35 in cash per share of BancWest
common stock, the internal rates of return are higher than BNP Paribas'
estimated cost of capital of approximately 9-10%.
PRO FORMA ANALYSIS OF THE MERGER.
Merrill Lynch also analyzed the pro forma impact of the merger on estimated
earnings per share of BNP Paribas for fiscal years 2001 and 2002 and estimated
cash earnings per share of BNP Paribas for fiscal years 2001 and 2002. The pro
forma results were calculated as if the merger had been completed on September
30, 2001, and were based on estimated projected earnings derived from I/B/E/S
estimates for BNP Paribas and estimated projected earnings derived from First
Call estimates for BancWest.
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40
For purposes of the pro forma analysis, Merrill Lynch also assumed the
following:
- 433.4 million fully diluted shares of outstanding common stock of BNP
Paribas and 124.7 million fully diluted shares of outstanding common
stock of BancWest;
- an annual asset growth of 5% for each of BNP Paribas and BancWest;
- exchange rate of EUR1.00 = US$0.90;
- French marginal tax rate of 35.4% for BNP Paribas;
- no synergies in the merger;
- no restructuring charge in connection with the merger; and
- cost of cash of 4.67%.
In addition, the pro forma earnings per share analysis excluded the impact of
potential exercise of the outstanding contingent value rights of BNP Paribas.
Merrill Lynch noted that, based on this analysis, the merger would:
- have a neutral impact on BNP Paribas' pro forma earnings per share in
fiscal year 2001,
- be slightly accretive to BNP Paribas' pro forma earnings per share in
fiscal year 2002 and
- be accretive to BNP Paribas' pro forma cash earnings per share in fiscal
years 2001 and 2002.
In addition, Merrill Lynch noted that, based on this analysis and assuming
that all of the outstanding contingent value rights of BNP Paribas are
exercised, the merger would be slightly dilutive to the pro forma Tier 1 Capital
Ratio of BNP Paribas at September 30, 2001.
In performing its analyses, Merrill Lynch made numerous assumptions with
respect to industry performance, general business and economic conditions and
other matters, many of which are beyond the control of BNP Paribas or BancWest.
Any estimates contained in the analyses performed by Merrill Lynch are not
necessarily indicative of future results or actual values, which may be
significantly more or less favorable than those suggested by such estimates. The
analyses do not purport to be appraisals of value or to reflect the prices at
which BNP Paribas or BancWest might actually trade. The consideration to be paid
to holders of BancWest common stock pursuant to the merger agreement was
determined through arm's-length negotiations between BNP Paribas and BancWest
and was approved by BNP Paribas' board of directors. Merrill Lynch did not
recommend any specific consideration to BNP Paribas or that any given
consideration constituted the only appropriate consideration for the merger.
Consequently, the Merrill Lynch analyses described above should not be viewed as
determinative of the opinion of either BNP Paribas' board of directors or
BancWest board of directors with respect to the value of BancWest or of whether
the BancWest board of directors would have been willing to agree to different
consideration.
Merrill Lynch is an internationally recognized investment banking and
advisory firm. BNP Paribas selected Merrill Lynch to act as its financial
advisor for the merger based on Merrill Lynch's qualifications, expertise and
reputation, as well as its knowledge of the business and affairs of BNP Paribas.
Merrill Lynch, as part of its investment banking business, is continually
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, competitive biddings,
secondary distributions of listed and unlisted securities, private placements
and valuations for corporate, estate and other purposes. Merrill Lynch and its
affiliates have provided financial advisory and financing services for BNP
Paribas and BancWest and have received fees for the rendering of these services.
In the ordinary course of its business, Merrill Lynch and its affiliates may,
from time to time, trade in the securities and indebtedness of BNP Paribas or
BancWest for its account or the accounts of investment funds and other clients
under the management of Merrill Lynch and for the accounts of its customers and,
accordingly, may at any time hold a long or short position in such securities or
indebtedness for any such account.
BNP Paribas has agreed to pay Merrill Lynch fees of up to $5,500,000 for
its financial advisory services, of which $4,000,000 has been earned and the
remainder is payable upon, and subject to, closing of the merger.
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BNP Paribas also agreed to reimburse Merrill Lynch for expenses incurred by
Merrill Lynch in performing its services. In addition, BNP Paribas has also
agreed to indemnify Merrill Lynch and its affiliates, their respective
directors, officers, agents and employees and each person, if any, controlling
Merrill Lynch or any of its affiliates against certain liabilities and expenses,
including liabilities under the federal securities laws, related to or arising
out of Merrill Lynch's engagement and any related transactions.
PURPOSE AND REASONS FOR THE MERGER; STRUCTURE OF THE MERGER
BNP PARIBAS.
BNP Paribas' and Chauchat's purpose for engaging in the merger is to enable
BNP Paribas to increase its equity ownership interest in BancWest from
approximately 45% to 100%. BNP Paribas' proposed acquisition of BancWest is part
of its plan to expand its international retail banking operations. BNP Paribas'
predecessor, Banque Nationale de Paris, acquired its 45% equity ownership
interest in BancWest in 1998 through the merger of the former holding company of
Bank of the West, at that time its wholly owned subsidiary, with publicly traded
First Hawaiian, Inc. As a result of the merger described in this proxy
statement, BancWest will become a wholly owned subsidiary of BNP Paribas.
BNP Paribas believes that by undertaking the proposed acquisition at this
time, it will:
- further BNP Paribas' objective of developing its international retail
banking franchise;
- permit BNP Paribas to benefit fully from BancWest's growth opportunities
as well as 100% of BancWest's expanding cash earnings, resulting in
further diversification of BNP Paribas' earnings base;
- result in cross-selling opportunities in areas such as consumer finance,
private banking, insurance products, and asset management;
- strengthen BNP Paribas' presence in the western United States banking
market, an attractive market for BNP Paribas due to its high growth
potential;
- enable BNP Paribas to use BancWest as a platform for the potential
development of additional business lines in the United States;
- simplify BancWest's ownership structure; and
- enable BNP Paribas to explore potential synergies between BancWest and
BNP Paribas' other global businesses.
BNP Paribas considered not increasing its ownership in BancWest and
considered the implications of disposing of its interest but neither of these
alternative courses of action were viewed as a desirable means of advancing BNP
Paribas' strategic objectives for the development of its international retail
banking business. BNP Paribas and Chauchat determined to undertake the merger at
this time as a result of BNP Paribas' overall consideration of its international
retail banking strategy and its conclusion that BNP Paribas should expand its
retail banking operations in the United States market. Although no particular
event or circumstance led to BNP Paribas' decision to engage in the merger at
this time, BNP Paribas was aware that waiting to engage in the transaction would
delay and potentially hinder the realization of its strategic goals for the
acquisition described above, including simplifying BancWest's ownership
structure, enabling BNP Paribas to use BancWest as a platform for expansion in
the western United States and developing additional business lines. In addition,
since November 1998, BNP Paribas had become increasingly familiar with
BancWest's management and had become comfortable with their ability to be fully
integrated into the BNP Paribas group and help BNP Paribas implement its
strategic goals.
BNP Paribas intends to rely on BancWest's current management to continue to
develop BNP Paribas' and BancWest's presence in the United States retail banking
market. As described under "-- Interests of Directors and Executive Officers in
the Merger," BancWest entered into an employment agreement with Walter A. Dods,
Jr., BancWest's chairman and chief executive officer, and has also entered into
termination protection agreements with John K. Tsui, vice chairman and chief
credit officer of BancWest, Howard H.
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Karr, executive vice president and chief financial officer of BancWest, and
Donald G. Horner, executive vice president of BancWest. Each of these agreements
will take effect on completion of the merger.
For further background on BNP Paribas' reasons for the merger, see
"-- Background of the Merger" and "-- BNP Paribas' and Chauchat's Positions as
to the Fairness of the Merger."
BANCWEST.
BancWest's purpose for engaging in the merger is to enable our public
stockholders to receive $35 in cash per share, representing a substantial
premium to the market price of our common stock prior to announcement of BNP
Paribas' proposal. As discussed above under "-- Recommendations of the Special
Committee and Our Board of Directors; Fairness of the Merger -- Recommendations
of the Special Committee and Our Board of Directors," the special committee
concluded that the opportunity to achieve $35 per share in the merger at this
time was a superior alternative to remaining a publicly traded company. BancWest
determined to undertake the transaction at this time based on the recommendation
of the special committee and the reasons of the special committee and of the
BancWest board of directors described in further detail above under
"-- Recommendations of the Special Committee and Our Board of Directors;
Fairness of the Merger."
STRUCTURE OF THE MERGER.
The transaction was structured as a merger because it was the most
efficient structure to accomplish the transaction.
EFFECTS OF THE MERGER; PLANS OR PROPOSALS AFTER THE MERGER
After the effective time of the merger, holders of BancWest common stock
will cease to have ownership interests in BancWest or rights as our stockholders
and will therefore not have the opportunity to share in any of our future
earnings and growth and will not bear the risk of any losses generated by our
operations and any decrease in our value after the merger. As a result of the
merger, BNP Paribas' interest in our net book value and net earnings will
increase from 45% to 100%, or by approximately $1.1 billion in the case of book
value and by approximately $119 million in the case of net earnings if the
merger had been completed as of [December 31, 2000], and as a result, BNP
Paribas will be the sole beneficiary of our future earnings and growth, if any.
Similarly, BNP Paribas will also bear the risk of any losses generated by our
operations and any decrease in our value after the merger.
Based on the assumptions described under "-- Summary of Financial Analyses
of Merrill Lynch & Co." above, BNP Paribas estimates that the transaction will:
- Be accretive to BNP Paribas' 2002 GAAP earnings per share by
approximately 0.3% and to 2002 cash earnings per share by approximately
2.3%.
- Result in an internal rate of return on BNP Paribas' total investment in
BancWest ranging from approximately 12.34% to 13.83%.
However, the effect of the transaction on BNP Paribas may be materially
more or less favorable to BNP Paribas as a result of, among other things, actual
results surpassing or not reaching assumed levels.
Following the merger, our common stock will no longer be traded on the New
York Stock Exchange. In addition, the registration of our common stock under the
Exchange Act will be terminated. Due to this termination, certain provisions of
Section 16(b) of the Securities Exchange Act of 1934, and requirements that we
furnish a proxy or information statement in connection with stockholders'
meetings will no longer apply to us. After the effective time of the merger,
there will be no publicly traded BancWest common stock outstanding. Except to
the extent required by outstanding BancWest or affiliate debt securities, we
will no longer be required to file periodic reports with the Securities and
Exchange Commission.
From and after the effective time of the merger, our current directors and
officers will remain the directors and officers of the surviving corporation,
until their successors are duly elected or appointed and
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qualified. From and after the effective time, our certificate of incorporation
and by-laws will be as set forth in Exhibits A and B to the merger agreement,
each until amended afterwards.
BNP Paribas expects that following completion of the merger, BancWest's
operations will be conducted substantially as they are currently being
conducted. BNP Paribas has informed us that it has no current plans or proposals
or negotiations which relate to or would result in an extraordinary corporate
transaction involving our corporate structure, business or management, such as a
merger, reorganization, liquidation, relocation of any operations, or sale or
transfer of a material amount of assets. Nevertheless, BNP Paribas may initiate
from time to time reviews of BancWest and its assets, corporate structure,
capitalization, operations, properties, management and personnel to determine
what changes, if any, would be desirable following the merger in order best to
organize and integrate BancWest's activities with those of BNP Paribas. BNP
Paribas expressly reserves the right to make any changes that it deems necessary
or appropriate in light of its review or in light of future developments.
In addition, BNP Paribas may also consider material changes in the present
dividend rate and policy, BancWest's indebtedness and capitalization and may
consider pursuing acquisition opportunities through BancWest.
INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS IN THE MERGER
Our board of directors and our executive officers have various interests in
the merger described in this section that are in addition to, or different from,
the interests of our stockholders generally. You should keep this in mind when
considering the recommendation of our board of directors for the adoption of the
merger agreement.
STOCK OPTIONS.
The merger agreement provides that as of the effective time of the merger,
all outstanding unvested employee stock options on BancWest common stock will
become exercisable. The merger agreement provides that, for each share covered
by outstanding stock options at the time of the merger, the holders of the
options will have the right to receive a cash payment. The amount of this
payment will equal the excess, if any, of the merger consideration of $35 in
cash per share of BancWest common stock over the per share exercise price of the
options, reduced by applicable withholding taxes.
Our executive officers currently hold a total of approximately 2.6 million
options, almost 1.4 million of which are already vested and 1.2 million of which
are currently unvested. The aggregate spread that the executive officers would
be entitled to receive for all of their options as of the date of this proxy
statement is approximately $42.4 million. Four of our executive officers are
directors. None of our other directors hold options.
LONG TERM INCENTIVE PLAN.
Approximately 120 of our employees, including all of our executive
officers, participate in our long term incentive plan. That plan pays cash
awards if we achieve specified performance levels over multi-year performance
cycles. Ordinarily, we would apply predetermined performance measures after the
close of the three-year periods ended December 31, 2001, 2002 and 2003 to
determine the amount of any awards to be paid for those three cycles. However,
due to change in control provisions in the plan, if the merger occurs every
participant will be entitled to receive his or her maximum possible award for
each of the three open cycles. As a result, if the merger is completed our
executive officers, four of whom are directors, will become entitled to long
term incentive plan awards totaling approximately $8.9 million, which will be
paid as soon as practicable after the merger.
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SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN.
Approximately 130 of our employees, including all of our executive
officers, participate in our supplemental executive retirement plan, or SERP.
The SERP contains change in control provisions that affect target benefit
calculations for SERP participants who are involuntarily terminated within three
years after the merger.
SERP benefits are paid in addition to benefits payable under other
retirement programs. When the SERP was amended in January 1998, certain benefit
provisions were grandfathered. Under the amended plan, participants receive (i)
in the case of grandfathered participants, benefits calculated under the
grandfathered SERP provisions, and (ii) benefits derived from a target
percentage of their qualifying compensation, less offsets for grandfathered SERP
benefits and for benefits under various other programs.
Our executive officers' maximum target percentage is 60% of qualifying
compensation. Ordinarily, qualifying compensation for this purpose is the
average annual rate of compensation (salary plus annual bonuses under our
Incentive Plan for Key Executives) for the 60 consecutive calendar months out of
the last 120 calendar months of employment that results in the highest such
average.
To qualify for a 60% target, our executive officers must retire on or after
their 62nd birthdays with 20 years of credited service. Their target percentages
are reduced by 3% for each year by which benefit commencement precedes the
participant's 62nd birthday. All of our named executive officers (Messrs. Dods,
McGrath, Tsui, Karr and Horner) already have more than 20 years of credited
service, except that Mr. Tsui currently has 17 years. (He would be entitled to
two years of additional credit under the termination protection agreement
described below if he is terminated without cause within three years after the
merger).
The SERP's change in control provisions apply to participants who are
"involuntarily terminated" within 36 months of a change in control, such as the
merger. (The SERP defines "involuntary termination" to include a discharge or
resignation in response to a (1) change in day-to-day duties; (2) reduction in
compensation or benefits; (3) downward change of title; or (4) relocation
requested by the employer). Affected SERP participants will be granted three
extra years of credited service in computing their target benefits. That
computation will also be based on the greater of covered compensation over the
12 months before termination, or the final average compensation otherwise
provided in the SERP. In addition, their SERP benefits will begin at the later
of the date of termination or age 55, though the participant may elect to delay
receipt of change in control benefits to a date not beyond age 65. If we were to
complete the merger and then terminate our named executive officers
involuntarily on November 1, 2001, and each such officer chose to delay receipt
of retirement payments until age 62, his annual SERP benefits after giving
effect to the SERP's grandfathered provisions and its change in control
provisions would be approximately: Mr. Dods -- $817,481; Mr.
McGrath -- $614,095; Mr. Tsui -- $441,342; Mr. Karr -- $210,523; and Mr.
Horner -- $157,140.
EMPLOYMENT AGREEMENTS.
Walter A. Dods, Jr., one of our directors and our chairman and chief
executive officer, has entered into an employment agreement with us, which will
become effective at the effective time of the merger and which will terminate
three years after the date the merger becomes effective, unless earlier
terminated by us or by Mr. Dods. Under the terms of his agreement, Mr. Dods is
entitled to:
- a base salary of $1,030,403, which may be increased annually at our
discretion after review by the board of directors,
- an annual target bonus of up to 100% of base salary payable, if
performance targets are met, but guaranteed to be at least 65% of base
salary,
- participate in, and receive stock and other equity or equity-based awards
under, the stock option programs and stock purchase programs of BNP
Paribas at levels and on terms consistent with those provided to
similarly situated executives of BNP Paribas and/or its subsidiaries, and
- other perquisites, including specified transportation benefits.
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Mr. Dods has the opportunity to earn awards under a new long term incentive
plan that are no less favorable than those he currently has the opportunity to
earn, with a guaranteed target award of at least 50% of base salary and a
maximum award opportunity of 200% of the target award.
Mr. Dods is entitled to receive a lump sum cash severance payment in the
following circumstances:
- BancWest terminates Mr. Dods' employment other than for cause (as defined
in the employment agreement), or due to death or disability,
- Mr. Dods quits for good reason (as defined in the employment agreement),
or
- Mr. Dods terminates his employment with us with or without good reason at
any time during the thirteenth month following a change in control of BNP
Paribas or BancWest. The merger is not a change of control for this
purpose.
The severance payment would be equal to the sum of:
(1) three times the sum of:
- his then current base salary,
- his average annual bonus based on the preceding three fiscal years,
and
- a long term incentive plan amount equal to his average award from
the three preceding fiscal years, but not less than his award paid
for the award cycle ended in 2000; and
(2) a pro rata portion for the year of termination of the annual
target bonus and the target awards in respect of all outstanding
performance periods under our long term incentive plan.
For example, if the merger occurs and then on November 1, 2001 Mr. Dods is
terminated without cause, he would be entitled to a severance payment of
$7,570,529 plus prorated portions of the target awards then in effect under long
term incentive plans and under our annual bonus program. Mr. Dods would also be
entitled by his employment agreement to three additional years of age and
service credit under our pension plans.
Mr. Dods is also entitled to be grossed up, on an after-tax basis, for any
excise taxes imposed under the Internal Revenue Code on any "excess parachute
payment" that he receives in connection with benefits and payments provided to
him in connection with any change in control, as defined in the Internal Revenue
Code, of BancWest.
Since 1998, Don J. McGrath, one of our directors and our president and
chief operating officer, has had an employment agreement with us, which provides
for a perpetual term and currently entitles Mr. McGrath to a base salary of at
least $800,000. His base salary may be increased annually at our discretion
after review by our board of directors, but may not be decreased.
Mr. McGrath is entitled to receive a lump sum cash severance payment in the
following circumstances, whether they occur following a change in control or
otherwise:
- BancWest terminates Mr. McGrath's employment other than for cause (as
defined in the employment agreement) or due to disability, or
- Mr. McGrath quits for good reason (as defined in the employment
agreement).
This severance payment would be equal to three times the sum of:
(1) his then current base salary, and
(2) his average annual bonus, if any, based on the preceding three fiscal
years.
Mr. McGrath is also entitled to be grossed up, on an after-tax basis, for
any excise taxes imposed under the Internal Revenue Code on any "excess
parachute payment" that he receives in connection with benefits and payments
provided to him in connection with any change in control, as defined in the
Internal Revenue Code, of BancWest.
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TERMINATION PROTECTION AGREEMENTS.
John K. Tsui, Howard H. Karr and Donald G. Horner, three of our executive
officers, have entered into termination protection agreements with us. Each
agreement becomes effective at the effective time of the merger and terminates
three years later. In no event, however, will it terminate within two years
after any change in control of BNP Paribas or BancWest. Under the terms of each
agreement, we will provide the relevant executive officer with the severance
benefits discussed below if any of the following events occurs:
- we terminate the executive officer's employment without cause (as defined
in the agreements),
- the executive officer quits for good reason (as defined in the
agreements), or
- the executive officer terminates his employment with us with or without
good reason at any time during the thirteenth month following a change in
control of BNP Paribas or BancWest. The merger is not a change in control
for this purpose.
Each executive's severance benefits will be a lump sum cash payment equal
to the sum of:
(1) two times the sum of:
- his then current base salary,
- his average annual bonus based on the preceding three fiscal years,
and
- his long term incentive plan award amount equal to his average
award from the three preceding fiscal years but not less than his
award paid for the award cycle that ended in 2000; and
(2) a pro rata portion for the year of termination of the executive's
annual target bonus and his target awards in respect of all outstanding
performance periods under our long term incentive plan.
For example, if the merger occurs and then on November 1, 2001 Mr. Tsui,
Mr. Karr or Mr. Horner is terminated without cause, he would be entitled to a
severance payment of $2,222,411, $1,273,240, or $1,161,000, respectively, plus a
prorated portion of his target awards then in effect under any long term
incentive plan adopted after the merger and under our annual bonus program.
Under these circumstance, these officers would also be entitled by their
termination protection agreements to two years of additional age and service
credit under our pension plans (in addition to three years of credited service
under the SERP that would affect only Mr. Tsui's SERP benefits).
Each of Messrs. Tsui, Karr and Horner is also entitled to be grossed up, on
an after-tax basis, for any excise taxes imposed under the Internal Revenue Code
on any "excess parachute payment" that such executive receives in connection
with benefits and payments provided to him in connection with any change in
control, as defined in the Internal Revenue Code, of BancWest.
ELECTION OF DIRECTORS BY BNP PARIBAS.
Nine of our directors are Class A directors elected directly by BNP
Paribas. These directors did not, however, participate in the vote by the board
of directors to approve the merger, but did vote to approve the waivers of the
standstill agreement since the waivers could not be granted under the standstill
agreement without their approval.
INDEMNIFICATION AND INSURANCE.
The merger agreement provides that, for six years after the merger, the
surviving corporation's certificate of incorporation and by-laws will contain
the provisions with respect to indemnification, expense advancement and
exculpation as set forth in our certificate of incorporation and by-laws. The
merger agreement also requires the surviving corporation to maintain in effect
the current directors' and officers' liability insurance or substantially
similar insurance. This insurance must cover those persons who were covered on
the date of the merger agreement by our directors' and officers' liability
insurance policy, for a period of at least six years. However, if the annual
premium for the policy exceeds 225% of the last annual premium paid by us prior
to
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May 8, 2001, then the surviving corporation in the merger is required only to
get as much comparable insurance as possible for an annual premium equal to 225%
of the last annual premium paid by us prior to May 8, 2001. We may satisfy the
surviving corporation's obligation with respect to the directors' and officers'
insurance policy by purchasing prior to the completion of the merger a prepaid
policy for an aggregate period of six years with respect to claims arising from
facts or events that occurred before the effective time of the merger. The
merger agreement also requires the surviving corporation to indemnify and hold
harmless any of our former or current officers or directors against any losses
in connection with any threatened or actual action, suit or proceeding, based in
whole or in part on, or arising in whole or in part out of, the fact that the
person is or was our officer or director. BNP Paribas has agreed to cause the
surviving corporation to perform these obligations.
TRUSTEES' FEES.
Messrs. Dods, Ganley, Haig and Weyand, directors of BancWest, serve as
trustees of the Estate of S.M. Damon. Under a statutory fee schedule, they will
be entitled to receive trustees' fees totaling about $15.9 million based on a
percentage of the cash proceeds Damon Estate receives for its BancWest stock
pursuant to the merger.
CERTAIN RELATIONSHIPS BETWEEN BANCWEST AND BNP PARIBAS
We have a number of contractual relationships with BNP Paribas relating to
its ownership of Class A Common Stock and other matters.
STANDSTILL AND GOVERNANCE AGREEMENT.
In connection with the 1998 merger of the former holding company of Bank of
the West with First Hawaiian, Inc., we entered into a standstill and governance
agreement with BNP Paribas which governs our relationship with BNP Paribas and
places restrictions on BNP Paribas' ability to acquire additional shares of our
common stock.
Standstill Period. The standstill agreement provides that, until November
1, 2002, BNP Paribas and its affiliates, directors or executive officers may not
acquire beneficial ownership of any of our voting shares if the acquisition of
those shares would give BNP Paribas and its affiliates more than 45% of our
outstanding voting shares. These restrictions are subject to limited exceptions.
These standstill restrictions were waived to the extent necessary to enable BNP
Paribas to enter into the merger agreement with us and take all actions
necessary to complete the merger and the transactions contemplated by the merger
agreement. See "-- Background of the Merger."
Other Standstill Provisions. BNP Paribas also agreed in the standstill
agreement that until November 1, 2002, except in specified circumstances,
neither it nor any of its affiliates will:
(1) solicit our securityholders for the approval of any securityholder
proposals or induce any other person to initiate any securityholder
proposal, or seek representation on our board of directors, other than a
nominee for a Class A directorship, or seek to remove any director, other
than a Class A director,
(2) propose a merger, sale of substantially all assets or any other
type of transaction that would result in a change of control of BancWest or
in any increase in BNP Paribas' ownership percentage. We refer to the
actions described in this clause (2) as a "company transaction proposal,"
(3) seek to exercise any control over us, other than solely by virtue
of representation on our board of directors,
(4) advise or otherwise assist any other person on any matter
restricted by, or seek to circumvent the limitations of, the standstill
agreement,
(5) present to us, our stockholders or any third party any proposal
that can reasonably be expected to result in a company transaction proposal
or in an increase in BNP Paribas' ownership percentage,
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(6) publicly suggest its willingness to engage directly or indirectly
in a transaction that could reasonably be expected to result in a company
transaction proposal or in an increase in BNP Paribas' ownership percentage
or take any action that might require us to make a public announcement
regarding any company transaction proposal,
(7) initiate, encourage or assist any other person in making, or enter
into negotiations with respect to, any proposal that can reasonably be
expected to result in a company transaction proposal or in an increase in
BNP Paribas' ownership percentage,
(8) directly or indirectly solicit proxies or written consents, or
otherwise become a "participant" in a "solicitation," or assist any
"participant" in a "solicitation" in opposition to the recommendation or
proposal of the board of directors, or induce or attempt to induce any
other person to take these actions, or seek to influence any other person
with respect to the voting of or a written consent in respect of our
securities carrying rights to vote for directors or, except as otherwise
expressly contemplated by the standstill agreement or our Certificate of
Incorporation, grant a proxy to any person other than an officer or agent
of BNP Paribas or BancWest.
(9) enter into any agreement or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting or disposing of
our equity securities,
(10) take any other actions to effect a change of control of BancWest
or an increase in BNP Paribas' ownership percentage or otherwise seek to
circumvent any of the limitations set forth in (1) - (9) above, or
(11) directly or indirectly request that we amend or waive any of the
provisions of the standstill agreement.
Exceptions to Standstill Provisions. Notwithstanding the restrictions
described above, under the standstill agreement, BNP Paribas may at any time
submit a business combination proposal to us. It may only do this, however, if:
- it makes the business combination proposal in writing and delivers it
only to our executive committee in a manner which does not require us to
publicly disclose the proposal, and
- BNP Paribas and its representatives keep confidential and refrain from
disclosing to any other person the fact that they have made a business
combination proposal or any of the terms thereof.
The standstill agreement provides that during the standstill period the
executive committee will be under no obligation to BNP Paribas or its affiliates
to accept any business combination proposal or to submit any business
combination proposal to the full board of directors.
In addition,
(1) if part of the agenda of any meeting of our board of directors or
any committee of our board of directors includes the review of any proposal
submitted by a third party with respect to a company transaction proposal
which would result in a change of control of us, other than any proposal
included as a result of action taken by BNP Paribas, or
(2) if our board of directors or any committee of our board of
directors determines to solicit proposals for this type of transaction from
third parties,
then we will be required to give prompt written notice of this determination to
BNP Paribas. We must then give BNP Paribas a reasonable opportunity to:
- in the case of (1) above, participate as a potential bidder prior to
accepting the third party proposal, or
- in the case of (2) above, participate in the solicitation process as a
potential bidder.
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Post-Standstill Provisions. The standstill agreement provides for a
post-standstill period, which starts on November 1, 2002 and lasts until either:
- BNP Paribas' ownership percentage falls below 10% or
- BNP Paribas consummates a business combination proposal pursuant to the
procedures described below or any other tender or exchange offer in which
BNP Paribas and its affiliates acquire at least 90% of the outstanding
BancWest shares of common stock not beneficially owned by BNP Paribas and
its affiliates.
During the post-standstill period BNP Paribas may contact or respond to
contacts from our other stockholders regarding our business and affairs on a
confidential basis. However, during this post-standstill period, neither BNP
Paribas nor any of its affiliates may:
- take any action resulting in a majority of our board of directors being
BNP Paribas nominees or otherwise not constituting independent directors,
- increase its beneficial ownership of our equity securities so that its
ownership percentage becomes greater than its maximum permitted ownership
percentage on November 1, 2002, or
- take any other action that could result in an increase in their ownership
percentage or other material transactions between us and BNP Paribas or
its affiliates.
In addition, for the first four years of the post-standstill period, BNP
Paribas may not, and may not permit any of its affiliates to, directly or
indirectly:
(1) solicit, finance or become a participant in a solicitation of
proxies or written consents:
- for the election of our non-Class A directors,
- for any stockholder proposal opposed by our board of directors or
- against any proposal submitted to the stockholders and recommended
by our board of directors;
(2) make or submit any proposal to our stockholders opposed by the
board of directors;
(3) make any public statement as to any intention to take actions not
consistent with the terms of the standstill agreement;
(4) publicly announce, except as otherwise legally required, any
intention to dispose of some or all of our securities or acquire additional
BancWest equity securities;
(5) form or join a group with the objective or effect of effecting a
change of control of BancWest;
(6) take any action inconsistent with the procedures described below
regarding submission of business combination proposals or
(7) publicly request or encourage others to request that we waive any
of the provisions contained in the standstill agreement.
These restrictions are subject to important exceptions. During the
post-standstill period, BNP Paribas may submit a business combination proposal,
including a tender or exchange offer for all our outstanding shares of common
stock, to our executive committee on a confidential basis. When it receives any
business combination proposal, the executive committee must promptly retain an
independent investment banking firm and outside legal counsel to assist it in
its review of the proposal. We will pay the fees of these advisors.
If the independent investment banking firm:
- is unable to conclude within 60 days following BNP Paribas' submission of
the business combination proposal to the executive committee that the
business combination proposal is fair from a financial point of view to
our stockholders, other than BNP Paribas and its affiliates, or
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- concludes that it is inadequate,
then BNP Paribas must withdraw its business combination proposal and may not
submit another one to us for a period of twelve months from the date on which
the independent investment banking firm reached its conclusion, or failed to
reach its conclusion, as the case may be.
If the independent investment banking firm concludes that the business
combination proposal is fair and adequate, then the executive committee will
submit the proposal to the full board of directors for consideration. If a
majority of the independent directors on the board of directors concludes that
the transaction contemplated by the business combination proposal is not in the
best interests of all of our stockholders at that time, then BNP Paribas must
withdraw its business combination proposal and may not submit another business
combination proposal to us for twelve months from the date on which the
independent directors made their conclusion. We use the term independent
director in this section to mean any director who:
- is not an affiliate or a past or present officer, director or employee
of, and was not nominated by, BNP Paribas or any of its affiliates, and
- is not associated with an entity that performs substantial services for
any of the foregoing.
Approval of any business combination proposal and related matters by our
board of directors will require:
- the affirmative vote of a majority of its independent directors, and
- any other vote required by applicable law.
Further, the business combination proposal may be subject to any "market check"
procedures for up to 90 days, as our board of directors, including a majority of
the independent directors, may determine to be appropriate.
If we receive a proposal from a third party that is superior to the
business combination proposal submitted by BNP Paribas we must offer BNP Paribas
a reasonable period, but no more than five business days after we notify them of
the third party's superior proposal, to revise its business combination
proposal. If it chooses, BNP Paribas may revise its proposal so that its terms
are superior to the third party's superior proposal. If BNP Paribas does not
submit a proposal that is superior to the third party's superior proposal within
the five business day period, then we may enter into an agreement for the third
party's superior proposal and our board of directors may recommend that our
stockholders accept that proposal. In that event, BNP Paribas has agreed that,
unless our board of directors withdraws its recommendation of the third party
proposal, it will vote all of our securities beneficially owned by BNP Paribas
in favor of the third party's superior proposal (or tender its securities in the
case of a tender or exchange offer).
If we do not receive a superior proposal during the market check period,
then we and BNP Paribas may enter into a definitive agreement to consummate BNP
Paribas' business combination proposal. This definitive agreement will contain
customary terms and conditions, including customary "fiduciary out" provisions.
Before we can enter into a definitive agreement, however, our board of directors
must receive a reaffirmation of the fairness opinion as of the date of the
agreement in form and substance reasonably and in good faith satisfactory to a
majority of the independent directors. If the independent investment banking
firm does not reaffirm its fairness opinion, we will notify BNP Paribas. BNP
Paribas will then have 15 days to improve its proposal so that the fairness
opinion may be reaffirmed. If, after BNP Paribas submits an improved proposal,
if any, the independent investment bank still does not reaffirm its fairness
opinion, then the proposed transaction will terminate and BNP Paribas may not
submit another proposal for twelve months following the date on which the
executive committee first submitted the proposal to the board of directors.
The standstill agreement provides that after we and BNP Paribas execute a
definitive agreement, BNP Paribas does not have to vote its shares in favor of
any alternative proposal or tender its shares in any alternative tender or
exchange offer that we enter into or that a third party makes after that time.
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TRANSFER RESTRICTIONS.
The standstill agreement also contains specified restrictions on BNP
Paribas' ability to transfer its BancWest securities which restrictions are
subject to specified exceptions. In some circumstances, BNP Paribas must offer
BancWest a right of first refusal to purchase its shares prior to any transfer
to a third party.
VOTING; OTHER MATTERS.
Pursuant to the standstill agreement, unless specified events have
occurred, BNP Paribas is required to vote our securities owned by it in the same
proportion as our unaffiliated stockholders vote, except with respect to the
election of Class A directors with respect to which BNP Paribas may vote its
shares in its sole discretion. The standstill agreement also contains specified
agreements with respect to BNP Paribas nominees to our board of directors,
committee representation and other similar governance matters.
REGISTRATION RIGHTS AGREEMENT.
In addition to the standstill agreement, we and BNP Paribas entered into a
registration rights agreement at the time of BNP Paribas' original acquisition
of the shares of our Class A common stock. Under the registration rights
agreement, BNP Paribas has the right to require us to use our best efforts to
register for resale under the Securities Act of 1933 shares of common stock that
we issue to BNP Paribas upon its transfer of the shares of Class A common stock
that it owns from time to time, or any securities distributed to BNP Paribas in
respect of the Class A common stock or the common stock.
We agreed in the registration rights agreement to pay all registration
expenses in connection with each registration of securities.
BNP Paribas may require us to register these securities in up to five
demand registrations and an unlimited number of incidental registrations.
However, BNP Paribas may not make more than a total of three demand and
incidental registration requests in any 12-month period and two demand
registration requests in any 12-month period. The registration rights agreement
contains other customary terms and conditions.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER TO OUR STOCKHOLDERS
The following is a summary of United States federal income tax consequences
of the merger to stockholders whose shares of BancWest common stock are
converted into the right to receive cash under the merger. The discussion is for
general information only and does not purport to consider all aspects of United
States federal income taxation that might be relevant to our stockholders. The
discussion is based on current law which is subject to change possibly with
retroactive effect. The discussion applies only to stockholders who hold shares
of our common stock as capital assets, and may not apply to shares of our common
stock received in connection with the exercise of employee stock options or
otherwise as compensation, or to certain types of stockholders (such as
insurance companies, tax-exempt organizations, financial institutions and
broker-dealers) who may be subject to special rules. This discussion does not
discuss the tax consequences to any of our stockholders who, for United States
federal income tax purposes, is a non-resident alien individual, foreign
corporation, foreign partnership or foreign estate or trust, and does not
address any aspect of state, local or foreign tax laws.
The receipt of cash for shares of our common stock in the merger will be a
taxable transaction for United States federal income tax purposes. In general, a
stockholder who surrenders shares of our common stock for cash in the merger
will recognize capital gain or loss for United States federal income tax
purposes equal to the difference, if any, between the amount of cash received
and the stockholder's adjusted tax basis in the shares of BancWest Common Stock
surrendered. Gain or loss will be determined separately for each block of shares
(i.e., shares acquired at the same cost in a single transaction) surrendered for
cash pursuant to the merger. Such gain or loss will be long-term capital gain or
loss provided that a stockholder's holding period for such shares is more than
12 months at the time of the consummation of the merger. Capital gains of
individuals derived in respect of capital assets held for more than one year are
eligible for reduced rates of taxation. There are limitations on the
deductibility of capital losses.
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Under the U.S. federal backup withholding tax rules, unless an exemption
applies, the paying agent will be required to withhold, and will withhold, 31%
of all cash payments to which a holder of shares or other payee is entitled
pursuant to the merger agreement, unless the stockholder or other payee provides
a tax identification number (social security number, in the case of an
individual, or employer identification number, in the case of other
stockholders), certifies that such number is correct, and otherwise complies
with such backup withholding tax rules. Each of our stockholders, and, if
applicable, each other payee, should complete and sign the Substitute Form W-9
included as part of the letter of transmittal to be returned to the paying
agent, in order to provide the information and certification necessary to avoid
backup withholding tax, unless an exemption applies and is established in a
manner satisfactory to the paying agent. Congress recently passed legislation
that if, as is expected, signed into law by the President, would reduce the rate
of backup withholding. Such reduced rate would be effective 60 days after
enactment.
THE U.S. FEDERAL INCOME TAX CONSEQUENCES SET FORTH ABOVE ARE FOR GENERAL
INFORMATION ONLY AND ARE NOT INTENDED TO CONSTITUTE A COMPLETE DESCRIPTION OF
ALL TAX CONSEQUENCES RELATING TO THE MERGER. BECAUSE INDIVIDUAL CIRCUMSTANCES
MAY DIFFER, EACH STOCKHOLDER SHOULD CONSULT THE STOCKHOLDER'S TAX ADVISOR
REGARDING THE APPLICABILITY OF THE RULES DISCUSSED ABOVE TO THE STOCKHOLDER AND
THE PARTICULAR TAX EFFECTS TO THE STOCKHOLDER OF THE MERGER, INCLUDING THE
APPLICATION OF STATE, LOCAL AND FOREIGN TAX LAWS.
LITIGATION
On May 7, 2001, eight purported class action suits were filed in the
Delaware Court of Chancery against BNP Paribas, BancWest and the members of our
board of directors. On May 9, 2001, a BancWest stockholder filed a purported
class action suit (Index No. 321199) in the Superior Court of the State of
California, County of San Francisco, against the same defendants and specified
officers of BancWest. On May 24, 2001, a substantially similar complaint was
filed by another BancWest stockholder in the same California court (Index No.
321646). Plaintiffs in both California suits have stipulated to stay all
proceedings in those suits pending entry of final judgment in all of the
Delaware suits, and those stipulations have been submitted to the California
court to be so ordered. On consent of all parties, all eight of the Delaware
suits have been consolidated into a single action (Civil Action No. 18858-NC) by
order of the Delaware court. The various complaints allege, among other things,
that the defendants have breached fiduciary and other duties to our public
stockholders in connection with BNP Paribas' preliminary proposal to acquire all
of our outstanding shares that BNP Paribas does not own at a price of $35 per
share. These complaints variously seek, among other things, a court order
enjoining any proposed transaction with BNP Paribas and an award of unspecified
damages and attorneys' fees. We believe that these complaints are without merit
and we intend to defend them vigorously.
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THE SPECIAL MEETING
This proxy statement is furnished in connection with the solicitation of
proxies by our board of directors in connection with a special meeting of our
stockholders.
DATE, TIME AND PLACE OF THE SPECIAL MEETING
The special meeting is scheduled to be held as follows:
Date: , 2001
Time: 9:00 a.m., local time
Place: Board Room, 30th Floor, First Hawaiian Center, 999 Bishop Street,
Honolulu, Hawaii
PROPOSAL TO BE CONSIDERED AT THE SPECIAL MEETING
At the special meeting, you will consider and vote upon a proposal to adopt
an agreement and plan of merger, dated as of May 8, 2001, among BancWest, BNP
Paribas and Chauchat, a wholly owned subsidiary of BNP Paribas.
RECORD DATE
The board of directors has fixed the close of business on July 27, 2001 as
the record date for the special meeting and only holders of common stock and
Class A common stock on the record date are entitled to notice of and to vote at
the special meeting. On that date, there were approximately 5,082 holders of
record of common stock, and 68,738,373 shares of common stock outstanding. On
the record date, BNP Paribas beneficially owned all 56,074,874 outstanding
shares of Class A common stock, representing approximately 45% of the total
voting power of BancWest.
VOTING RIGHTS; VOTE REQUIRED FOR ADOPTION
Each share of common stock and Class A common stock entitles its holder to
one vote on all matters properly coming before the special meeting. A majority
of the total number of all outstanding shares of common stock and Class A common
stock entitled to vote, represented in person or by proxy, will constitute a
quorum at the special meeting. Each share of common stock and Class A common
stock entitles the holder to cast one vote at the special meeting.
If you hold your shares in an account with a broker or bank, you must
instruct the broker or bank on how to vote your shares. If an executed proxy
card returned by a broker or bank holding shares indicates that the broker or
bank does not have discretionary authority to vote on the adoption of the merger
agreement, the shares will be considered present at the meeting for purposes of
determining the presence of a quorum, but will not be voted on the proposals to
adopt the merger agreement or to adjourn the special meeting, if necessary. This
is called a broker non-vote. Your broker or bank will vote your shares only if
you provide instructions on how to vote by following the instructions provided
to you by your broker or bank.
Under Delaware law, the merger agreement must be adopted by the affirmative
vote of the holders of a majority of the shares of common stock and Class A
common stock outstanding and entitled to vote at the special meeting, voting
together as a single class. In addition, we agreed with BNP Paribas in the
merger agreement that the holders of at least two-thirds of the shares of common
stock and Class A common stock outstanding and entitled to vote at the special
meeting, voting together as a single class, must adopt the merger agreement
before we can complete the merger. The proposal to adjourn the special meeting
must be adopted by the affirmative vote of the holders of a majority of the
shares of common stock and Class A common stock, present in person or by proxy
and entitled to vote on the proposal, voting together as a single class.
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Abstentions and broker non-votes will have the same effect as a vote
against the proposal to adopt the merger agreement. Abstentions will have the
same effect as a vote against, and broker non-votes will have no effect on, the
proposal to adjourn the special meeting.
BNP Paribas has agreed to vote its shares in favor of the adoption of the
merger agreement. No voting agreement exists between BNP Paribas and any of the
directors obligating the directors to vote their shares in favor of the
transaction. However, each of our directors and executive officers has indicated
that he or she intends to vote his or her own shares in favor of adoption of the
merger agreement. Four of our directors are also trustees of the Estate of S.M.
Damon, which owns 15,200,000 shares of our common stock. The trustees have the
authority to vote the shares of our common stock held by the trust. BancWest
currently expects the trustees to vote in favor of the transaction, but they are
not obligated to do so. BNP Paribas and our directors and executive officers
possess or control another 57,676,433 voting shares. If BNP Paribas, each of our
directors and officers and Damon Estate vote their shares for adoption of the
merger agreement, 58.4% of the outstanding shares of common stock and Class A
common stock, voting together as a single class, will have voted for adoption of
the merger agreement. This means that holders of only an additional 8.3% of all
shares entitled to vote at the meeting would need to vote for adoption of the
merger agreement in order for it to be adopted. If BNP Paribas and our directors
and executive officers vote their shares for the merger but Damon Estate does
not, we will need affirmative votes from holders of about 25,524,078 additional
shares (representing 37.1% of our outstanding common stock and 20.5% of our
total outstanding voting securities) to complete the transaction. Votes will be
tabulated by our transfer agent, American Stock Transfer & Trust Company.
As of July 27, 2001, two of our banking subsidiaries, Bank of the West and
First Hawaiian Bank, as fiduciaries, custodians or agents, held a total of
approximately 3.5 million shares of common stock. On that date those banks held
sole or shared voting power for approximately 3.2 million of these shares. The
address of Bank of the West is 180 Montgomery Street, San Francisco, California
94104 and the address of First Hawaiian Bank is 999 Bishop Street, Honolulu,
Hawaii 96813.
VOTING AND REVOCATION OF PROXIES
Stockholders of record may submit proxies by mail, by Internet, or by
telephone. Stockholders who wish to submit a proxy by mail should mark, date,
sign and return the proxy card in the envelope furnished. Stockholders who wish
to submit a proxy by Internet may do so by going to the website,
www.voteproxy.com. Stockholders who wish to submit a proxy by telephone may do
so by calling 1-800-PROXIES. Telephone and Internet proxy submission procedures
are designed to verify stockholders through use of a control number that is
provided on each proxy card. Stockholders who hold shares beneficially through a
nominee (such as a bank or broker) may be able to submit a proxy by telephone or
the Internet if those services are offered by the nominee.
Proxies received at any time before the special meeting, and not revoked or
superseded before being voted, will be voted at the special meeting. Where a
specification is indicated by the proxy, it will be voted in accordance with the
specification. Where no specification is indicated, the proxy will be voted
"FOR" the proposals to adopt the merger agreement and to adjourn the special
meeting if necessary and in the discretion of the persons named in the proxy
with respect to any other business which may properly come before the meeting or
any adjournment of the meeting. Our board of directors is not currently aware of
any business to be brought before the special meeting other than that described
in this proxy statement.
Until your proxy is exercised at the special meeting, you can revoke your
proxy and change your vote in any of the following ways:
- by delivering written notification to our Corporate Secretary at our
executive offices at 999 Bishop Street, Honolulu, Hawaii 96813,
- by delivering a proxy of a later date by mail, Internet or telephone,
- by attending the special meeting and voting in person. Your attendance at
the meeting will not, by itself, revoke your proxy; you must vote in
person at the meeting, or
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- if you have instructed a broker to vote your shares, by following the
directions received from your broker to change those instructions.
SOLICITATION OF PROXIES
We will bear the expenses in connection with the solicitation of proxies.
Arrangements will also be made with brokerage houses and other custodians,
nominees and fiduciaries for the forwarding of solicitation material to the
beneficial owners of common stock held of record by such persons, and we may
reimburse them for their reasonable transaction and clerical expenses.
Solicitation of proxies will be made principally by mail. Proxies may also be
solicited in person, or by telephone, facsimile, telegram or other means of
communication, by our officers and regular employees. These people will receive
no additional compensation for these services, but will be reimbursed for any
transaction expenses incurred by them in connection with these services. We have
retained Georgeson Shareholder Communications Inc., a proxy solicitation firm,
for assistance in connection with the solicitation of proxies for the special
meeting at a cost of approximately $10,000 plus reimbursement of reasonable
out-of-pocket expenses.
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THE MERGER
This section of the proxy statement describes material aspects of the
proposed merger, including the merger agreement. While we believe that the
description covers the material terms of the merger, this summary may not
contain all of the information that is important to you. You should carefully
read this entire proxy statement and the other documents we refer you to for a
more complete understanding of the merger. In addition, we incorporate important
business and financial information into this proxy statement by reference. You
may obtain the information incorporated by reference into this proxy statement
without charge by following the instructions in the section entitled "Where You
Can Find More Information" that begins on page 64 of this proxy statement.
EFFECTIVE TIME OF MERGER
If the merger agreement is adopted by the requisite vote of stockholders
and the other conditions to the merger are satisfied, or waived to the extent
permitted, the merger will be consummated and become effective at the time a
certificate of merger is filed with the Secretary of State of the State of
Delaware or any later time as we, BNP Paribas and Chauchat agree upon and
specify in the certificate of merger. If our stockholders adopt the merger
agreement, we expect to complete the merger during the third quarter of 2001.
We or BNP Paribas may terminate the merger agreement prior to the effective
time of the merger in some circumstances, whether before or after the adoption
of the merger agreement by stockholders. Additional details on termination of
the merger agreement are described in "-- The Merger Agreement -- Termination of
the Merger Agreement."
PAYMENT OF MERGER CONSIDERATION AND SURRENDER OF STOCK CERTIFICATES
If we complete the merger, our common stockholders will be entitled to
receive $35 in cash for each share of common stock that they own. Class A common
shares will remain issued and outstanding as Class A common stock of the
surviving corporation. BNP Paribas or its wholly owned subsidiaries own all
shares of Class A common stock.
BNP Paribas will designate a paying agent reasonably acceptable to the
special committee to make the cash payments contemplated by the merger
agreement. At or prior to the effective time of the merger, BNP Paribas will, or
will cause Chauchat to, deposit in trust with the paying agent funds in an
aggregate amount equal to the merger consideration for all stockholders. The
paying agent will deliver to you your merger consideration according to the
procedure summarized below.
At the close of business on the day of the effective time of the merger, we
will close our stock ledger. After that time, the surviving corporation will not
transfer common stock and Class A common stock on its stock transfer books. If
you present common stock certificates to the surviving corporation after the
effective time of the merger, the surviving corporation will cancel them in
exchange for cash as described in this section.
As soon as practicable after the effective time of the merger, the
surviving corporation will send you, or cause to be sent to you, a letter of
transmittal and instructions advising you how to surrender your certificates in
exchange for the merger consideration.
The paying agent will promptly pay you your merger consideration, together
with any dividends to which you are entitled, after you have (1) surrendered
your certificates to the paying agent and (2) provided to the paying agent any
other items specified by the letter of transmittal.
Interest will not be paid or accrue in respect of cash payments of merger
consideration. The surviving corporation will reduce the amount of any merger
consideration paid to you by any applicable withholding taxes.
If the paying agent is to pay some or all of your merger consideration to a
person other than you, you must have your certificates properly endorsed or
otherwise in proper form for transfer, and you must pay any transfer
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or other taxes payable by reason of the transfer or establish to the surviving
corporation's satisfaction that the taxes have been paid or are not required to
be paid.
YOU SHOULD NOT FORWARD YOUR STOCK CERTIFICATES TO THE PAYING AGENT WITHOUT
A LETTER OF TRANSMITTAL, AND YOU SHOULD NOT RETURN YOUR STOCK CERTIFICATES WITH
THE ENCLOSED PROXY.
The transmittal instructions will tell you what to do if you have lost your
certificate, or if it has been stolen or destroyed. You will have to provide an
affidavit to that fact and, if required by paying agent, BNP Paribas or the
surviving corporation, post a bond in an amount that the paying agent, BNP
Paribas or the surviving corporation, as the case may be, reasonably directs as
indemnity against any claim that may be made against those parties in respect of
the certificate.
After the merger, subject to the exceptions in the next sentence, you will
cease to have any rights as our stockholder. The exceptions include the right to
receive dividends or other distributions with respect to your shares with a
record date before the effective time of the merger, the right to surrender your
certificate in exchange for payment of the merger consideration or, if you
exercise your appraisal rights, the right to perfect your right to receive
payment for your shares pursuant to Delaware law.
One year after the merger occurs, the paying agent will return to the
surviving corporation all funds in its possession that constitute any portion of
the merger consideration, and the paying agent's duties will terminate. After
that time, stockholders may surrender their certificates to the surviving
corporation and, subject to applicable abandoned property laws, escheat and
similar laws, will be entitled to receive the merger consideration without
interest. We, the paying agent, BNP Paribas and Chauchat will not be liable to
stockholders for any merger consideration delivered to a public official
pursuant to applicable abandoned property laws, escheat and similar laws.
ACCOUNTING TREATMENT
For U.S. accounting and financial reporting purposes, the merger is
intended to be treated as a purchase of us by BNP Paribas under generally
accepted accounting principles. Under the purchase method of accounting, the
assets and liabilities of the corporation not surviving a merger are, as of the
effective date of the merger, recorded at their respective fair values and added
to those of the surviving corporation. Financial statements of the surviving
corporation issued after consummation of the merger reflect such values and are
not restated retroactively to reflect the historical financial position or
results of operations of the corporation not surviving.
FEES AND EXPENSES OF THE MERGER
Whether or not the merger is completed and except as otherwise provided in
the merger agreement, all fees and expenses in connection with the merger will
be paid by the party incurring those fees and expenses, except that we and
Chauchat will share equally the expenses related to the printing and mailing of
this proxy statement and all filing and other fees paid to the Securities and
Exchange Commission in connection with the merger. In addition to any
termination fee that we may have to pay under the merger agreement, our total
fees and expenses in connection with the merger are estimated to be
approximately $10.1 million.
Certain of BancWest's fees and expenses in connection with the merger are
set forth in the table below:
<Table>
Legal, Accounting and Other Professional Fees(1)............ $ 9,082,000
Printing, Proxy Solicitation and Mailing Costs.............. 210,000
Special Committee Fees...................................... 24,500
Filing Fees................................................. 499,000
Miscellaneous............................................... 290,000
-----------
Total............................................. $10,105,500
===========
</Table>
- ------------------
(1) Includes fees to be paid to Goldman, Sachs & Co.
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FINANCING OF THE MERGER
BNP Paribas estimates that approximately $2.5 billion will be required to
complete the purchase of shares of our common stock, restricted stock and
options pursuant to the merger and pay its related fees and expenses (including
Chauchat's share of the expenses related to the printing and mailing of this
proxy statement and all filing and other fees paid to the Securities and
Exchange Commission in connection with the merger). BNP Paribas expects this
amount to be funded through internally available funds. The merger is not
conditioned on any financing arrangements.
APPRAISAL RIGHTS
Under Section 262 of the General Corporation Law of the State of Delaware,
BancWest common stockholders who do not wish to accept the merger consideration
of $35 in cash per share may elect to have the fair value of their shares of
BancWest common stock judicially determined and paid in cash, together with a
fair rate of interest, if any. The valuation will exclude any element of value
arising from the accomplishment or expectation of the merger. A stockholder may
only exercise its rights if it complies with the provisions of Section 262.
The following discussion is not a complete statement of the law pertaining
to appraisal rights under the General Corporation Law of the State of Delaware,
and is qualified in its entirety by the full text of Section 262. We have
attached Section 262 in its entirety as Annex C to this proxy statement. All
references in Section 262 and in this summary to a "stockholder" are to the
record holder of the shares of common stock as to which appraisal rights are
asserted. A PERSON HAVING A BENEFICIAL INTEREST IN SHARES OF COMMON STOCK HELD
OF RECORD IN THE NAME OF ANOTHER PERSON, SUCH AS A BROKER OR NOMINEE, MUST ACT
PROMPTLY TO CAUSE THE RECORD HOLDER TO FOLLOW PROPERLY THE STEPS SUMMARIZED
BELOW AND IN A TIMELY MANNER TO PERFECT APPRAISAL RIGHTS.
Under Section 262, where a proposed merger is to be submitted for approval
at a meeting of stockholders, as in the case of our special meeting, the
corporation, not less than 20 days prior to the meeting, must notify each of its
stockholders entitled to appraisal rights that these appraisal rights are
available and include in such notice a copy of Section 262. This proxy statement
will constitute this notice to the holders of common stock and the applicable
statutory provisions of the General Corporation Law of the State of Delaware are
attached to this proxy statement as Annex C. Any stockholder who wishes to
exercise such appraisal rights or who wishes to preserve the right to do so
should review carefully the following discussion and Annex C to this proxy
statement. FAILURE TO COMPLY WITH THE PROCEDURES SPECIFIED IN SECTION 262 TIMELY
AND PROPERLY WILL RESULT IN THE LOSS OF APPRAISAL RIGHTS. Moreover, because of
the complexity of the procedures for exercising the right to seek appraisal of
the common stock, we believe that stockholders who consider exercising such
rights should seek the advice of counsel.
Any holder of common stock wishing to exercise the right to demand
appraisal under Section 262 of the General Corporation Law of the State of
Delaware must satisfy each of the following conditions:
- the holder must deliver to us a written demand for appraisal of its
shares before the vote on the merger agreement at the special meeting.
This demand will be sufficient if it reasonably informs us of the
identity of the stockholder and that the stockholder intends by that
writing to demand the appraisal of its shares;
- the holder must not vote its shares of common stock in favor of the
merger agreement. A proxy which does not contain voting instructions
will, unless revoked, be voted in favor of the merger agreement.
Therefore, a stockholder who votes by proxy and who wishes to exercise
appraisal rights must vote against the merger agreement or abstain from
voting on the merger agreement; and
- the holder must continuously hold its shares from the date of making the
demand through the effectiveness of the merger. A stockholder who is the
record holder of shares of common stock on the date the written demand
for appraisal is made but who thereafter transfers those shares prior to
the effectiveness of the merger will lose any right to appraisal in
respect of those shares.
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Voting against, abstaining from voting on or failing to vote on the
proposal to adopt the merger agreement will not constitute a written demand for
appraisal within the meaning of Section 262. The written demand for appraisal
must be in addition to and separate from any proxy you deliver or vote you cast
in person.
Only a holder of record of shares of common stock is entitled to assert
appraisal rights for those shares registered in that holder's name. A demand for
appraisal should:
(1) be executed by or on behalf of the stockholder of record, fully
and correctly, as its name appears on those stock certificates, and
(2) specify the following:
- the stockholder's name and mailing address,
- the number of shares of common stock owned by the stockholder, and
- that the stockholder intends thereby to demand appraisal of its
common stock.
If the shares are owned of record by a person in a fiduciary capacity, such
as a trustee, guardian or custodian, the demand should be executed in that
capacity. If the shares are owned of record by more than one person as in a
joint tenancy or tenancy in common, the demand should be executed by or on
behalf of all owners. An authorized agent, including an agent for two or more
joint owners, may execute a demand for appraisal on behalf of a stockholder;
however, the agent must identify the record owner or owners and expressly
disclose the fact that, in executing the demand, the agent is acting as agent
for such owner or owners. A record holder such as a broker who holds shares as
nominee for several beneficial owners may exercise appraisal rights with respect
to the shares held for one or more beneficial owners while not exercising these
rights with respect to the shares held for one or more other beneficial owners.
In this case, the written demand should set forth the number of shares as to
which appraisal is sought, and where no number of shares is expressly mentioned
the demand will be presumed to cover all shares held in the name of the record
owner. STOCKHOLDERS WHO HOLD THEIR SHARES IN BROKERAGE ACCOUNTS OR OTHER NOMINEE
FORMS AND WHO WISH TO EXERCISE APPRAISAL RIGHTS ARE URGED TO CONSULT WITH THEIR
BROKERS TO DETERMINE APPROPRIATE PROCEDURES FOR THE MAKING OF A DEMAND FOR
APPRAISAL BY SUCH NOMINEE.
A stockholder who elects to exercise appraisal rights pursuant to Section
262 should mail or deliver a written demand to: BancWest Corporation, 999 Bishop
Street, Honolulu, Hawaii 96813, Attention: Howard H. Karr.
Within ten days after the effectiveness of the merger, the surviving
corporation in the merger must send a notice as to the effectiveness of the
merger to each of our former stockholders who has made a written demand for
appraisal in accordance with Section 262 and who has not voted to adopt the
merger agreement. Within 120 days after the effectiveness of the merger, but not
after that date, either the surviving corporation or any stockholder who has
complied with the requirements of Section 262 may file a petition in the
Delaware Court of Chancery demanding a determination of the value of the shares
of common stock held by all stockholders demanding appraisal of their shares. We
are under no obligation to, and have no present intent to, file a petition for
appraisal, and stockholders seeking to exercise appraisal rights should not
assume that the surviving corporation will file a petition or that the surviving
corporation will initiate any negotiations with respect to the fair value of the
shares. Accordingly, stockholders who desire to have their shares appraised
should initiate any petitions necessary for the perfection of their appraisal
rights within the time periods and in the manner prescribed in Section 262.
Since we have no obligation to file a petition, your failure to do so within the
period specified could nullify your previous written demand for appraisal.
Under the merger agreement, we have agreed to give BNP Paribas and Chauchat
prompt notice of any demands for appraisal we receive. BNP Paribas and Chauchat
have the right to participate in and approve all negotiations and proceedings
with respect to demands for appraisal under the General Corporation Law of the
State of Delaware. We will not, except with the prior written consent of BNP
Paribas and Chauchat, make any payment with respect to any demands for
appraisal, or offer to settle, or settle, any demands.
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Within 120 days after the effectiveness of the merger, any stockholder that
complies with the provisions of Section 262 to that point in time will be
entitled to receive from the surviving corporation, upon written request, a
statement setting forth the aggregate number of shares not voted in favor of the
merger agreement and with respect to which we have received demands for
appraisal and the aggregate number of holders of those shares. The surviving
corporation must mail this statement to the stockholder by the later of 10 days
after receipt of a request or 10 days after expiration of the period for
delivery of demands for appraisals under Section 262.
A stockholder who timely files a petition for appraisal with the Delaware
Court of Chancery must serve a copy upon the surviving corporation. The
surviving corporation must then within 20 days file with the Delaware Register
in Chancery a duly verified list containing the names and addresses of all
stockholders who have demanded appraisal of their shares and who have not
reached agreements with us as to the value of their shares. After notice to
stockholders as may be ordered by the Delaware Court of Chancery, the Delaware
Court of Chancery is empowered to conduct a hearing on the petition to determine
which stockholders are entitled to appraisal rights. The Delaware Court of
Chancery may require stockholders who have demanded an appraisal for their
shares and who hold stock represented by certificates to submit their
certificates to the Register in Chancery for notation on the certificates of the
pendency of the appraisal proceedings, and if any stockholder fails to comply
with the requirement, the Delaware Court of Chancery may dismiss the proceedings
as to that stockholder.
After determining what stockholders are entitled to an appraisal, the
Delaware Court of Chancery will appraise the "fair value" of their shares. This
value will exclude any element of value arising from the accomplishment or
expectation of the merger, but will include a fair rate of interest, if any, to
be paid upon the amount determined to be the fair value. The costs of the action
may be determined by the Delaware Court of Chancery and taxed upon the parties
as the Delaware Court of Chancery deems equitable. However, costs do not include
attorneys' or expert witness fees. Upon application of a stockholder, the
Delaware Court of Chancery may also order that all or a portion of the expenses
incurred by any stockholder in connection with the appraisal proceeding be
charged pro rata against the value of all of the shares entitled to appraisal.
These expenses may include, without limitation, reasonable attorneys' fees and
the fees and expenses of experts. STOCKHOLDERS CONSIDERING SEEKING APPRAISAL
SHOULD BE AWARE THAT THE FAIR VALUE OF THEIR SHARES AS DETERMINED UNDER SECTION
262 COULD BE MORE THAN, THE SAME AS OR LESS THAN THE MERGER CONSIDERATION THEY
WOULD BE ENTITLED TO RECEIVE PURSUANT TO THE MERGER AGREEMENT IF THEY DID NOT
SEEK APPRAISAL OF THEIR SHARES. STOCKHOLDERS SHOULD ALSO BE AWARE THAT
INVESTMENT BANKING OPINIONS AS TO FAIRNESS FROM A FINANCIAL POINT OF VIEW ARE
NOT NECESSARILY OPINIONS AS TO FAIR VALUE UNDER SECTION 262.
In determining fair value and, if applicable, a fair rate of interest, the
Delaware Court of Chancery is to take into account all relevant factors. In
Weinberger v. UOP, Inc., the Delaware Supreme Court discussed the factors that
could be considered in determining fair value in an appraisal proceeding,
stating that "proof of value by any techniques or methods that are generally
considered acceptable in the financial community and otherwise admissible in
court" should be considered, and that "fair price obviously requires
consideration of all relevant factors involving the value of a company."
Section 262 provides that fair value is to be "exclusive of any element of
value arising from the accomplishment or expectation of the merger." In Cede &
Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion
is a "narrow exclusion [that] does not encompass known elements of value," but
which rather applies only to the speculative elements of value arising from such
accomplishment or expectation. In Weinberger, the Delaware Supreme Court
construed Section 262 to mean that "elements of future value, including the
nature of the enterprise, which are known or susceptible of proof as of the date
of the merger and not the product of speculation, may be considered."
Any stockholder who has duly demanded an appraisal in compliance with
Section 262 will not, after the effectiveness of the merger, be entitled to vote
the shares subject to that demand for any purpose or be entitled to the payment
of dividends or other distributions on those shares. However, stockholders will
be entitled to dividends or other distributions payable to holders of record of
shares as of a record date prior to the effectiveness of the merger.
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Any stockholder may withdraw its demand for appraisal and accept the merger
consideration by delivering to the surviving corporation a written withdrawal of
the stockholder's demands for appraisal. Any attempt to withdraw made more than
60 days after the effectiveness of the merger will require written approval of
the surviving corporation and no appraisal proceeding before the Delaware Court
of Chancery as to any stockholder shall be dismissed without the approval of the
Delaware Court of Chancery, and this approval may be conditioned upon any terms
the Delaware Court of Chancery deems just.
If the surviving corporation does not approve a stockholder's request to
withdraw a demand for appraisal when the approval is required or if the Delaware
Court of Chancery does not approve the dismissal of an appraisal proceeding, the
stockholder would be entitled to receive only the appraised value determined in
any such appraisal proceeding. This value could be higher or lower than, or the
same as, the value of the merger consideration.
Failure to comply strictly with all of the procedures set forth in Section
262 of the General Corporation Law of the State of Delaware will result in the
loss of a stockholder's statutory appraisal rights. Consequently, any
stockholder wishing to exercise appraisal rights is urged to consult legal
counsel before attempting to exercise those rights.
BNP Paribas and its subsidiaries, as the holders of all of the outstanding
Class A common stock, may also elect to have the fair value of their Class A
common stock judicially determined by following the procedures described above.
However, BNP Paribas has agreed to vote, or cause to be voted, all of the shares
of Class A common stock in favor of adoption of the merger agreement and has
advised us that it has no intention of exercising appraisal rights with respect
to any of its shares.
REGULATORY APPROVALS AND OTHER CONSENTS
BNP Paribas filed an application with the Federal Reserve Board on July 11,
2001 requesting approval of the merger under Section 3 of the Bank Holding
Company Act of 1956. The application describes the terms of the merger and
provides information regarding the parties, including pro forma financial data
for BNP Paribas following the merger. In evaluating the application, the Federal
Reserve Board will consider the financial and managerial resources and prospects
of BNP Paribas and the subsidiary banks of BancWest. The Federal Reserve Board
will also consider the effects, if any, on competition in relevant banking
markets.
Under the Community Reinvestment Act, the Federal Reserve Board must take
into account our record of performance in meeting the credit needs of the entire
community that we serve, including low and moderate income neighborhoods. As
part of the review process in merger transactions, the Federal Reserve Board
frequently receives protests from community groups and others regarding various
aspects of the proposal and, in particular, the extent to which the applicants
are complying with Community Reinvestment Act and fair lending laws. All of our
banking subsidiaries that are required to have ratings under the Community
Reinvestment Act have received either an outstanding or satisfactory Community
Reinvestment Act rating in their most recent Community Reinvestment Act
examinations by the Federal Deposit Insurance Corporation, their primary federal
regulator.
The Federal Reserve Board is also authorized, but generally not required,
to hold a public hearing or meeting in connection with an application if it
determines that such a hearing or meeting would be appropriate. A decision by
the Federal Reserve Board to hold a public hearing or meeting regarding the
applications could prolong the period during which the application is subject to
review.
Applicable federal law provides for the publication of notice and public
comment on the application filed by BNP Paribas with the Federal Reserve Board.
Under current law, the merger may not be completed until the Federal Reserve
Board has approved the merger and a period of 30 days, which may be reduced to
15 days by the Federal Reserve Board with the concurrence of the Attorney
General of the United States, following the date of approval by the Federal
Reserve Board, has expired. The bringing of an antitrust action by the
Department of Justice would stay the effectiveness of Federal Reserve Board
approval of the merger unless a court specifically ordered otherwise. In
reviewing the merger, the Department of Justice could analyze the merger's
effect on competition differently than the Federal Reserve Board, and thus it is
possible that the
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Department of Justice could reach a different conclusion than the Federal
Reserve Board regarding the merger's competitive effects. However, inasmuch as
our banking operations and those of BNP Paribas do not overlap in any banking
market, as defined by the Federal Reserve Board, we and BNP Paribas do not
expect the merger to raise antitrust issues.
The approval of an application by the Federal Reserve Board means only that
the regulatory criteria for approval have been satisfied or waived. It does not
mean that the approving authority has determined that the consideration to be
received by our stockholders is fair. Regulatory approval does not constitute an
endorsement or recommendation of the merger.
In addition, Bank of the West will file a prior notice with the Washington
State Department of Financial Institutions advising the Department of the
proposed merger.
THE MERGER AGREEMENT
This section of the proxy statement describes the material terms of the
merger agreement. The following summary is qualified in its entirety by
reference to the complete text of the merger agreement, which is incorporated
into this proxy statement by reference and attached as Annex A to this proxy
statement. We urge you to read the full text of the merger agreement.
COMPLETION OF THE MERGER.
The merger will be completed when we file a certificate of merger with the
Delaware Secretary of State. However, we may agree to a later time for
completion of the merger and specify that time in the certificate of merger. We
will file the certificate of merger as soon as practicable after the
satisfaction or waiver of the closing conditions in the merger agreement, which
are described below.
We expect to complete the merger as quickly as possible after we receive
stockholder and regulatory approval of the merger, which we currently anticipate
will occur during the third quarter of 2001.
CONDITIONS TO THE MERGER.
Conditions to Each Party's Obligations. Each party's obligation to
complete the merger is subject to the satisfaction or waiver of the following
conditions:
- we must obtain the affirmative vote of the holders of at least two-thirds
of the total number of shares of common stock and Class A common stock
outstanding and entitled to vote at the special meeting, voting together
as a single class and BancWest has no present intention of waiving this
condition;
- we must obtain all regulatory approvals necessary for us to complete the
merger and these approvals must be in full force and effect, other than
approvals the failure of which to obtain would not reasonably be expected
to have a material adverse effect on the completion of the merger or the
surviving corporation; and
- there must not be in effect any order or injunction prohibiting
completion of the merger, and completion of the merger must not be
illegal under any applicable law.
Conditions to BNP Paribas' and Chauchat's Obligations. The obligation of
BNP Paribas and Chauchat to complete the merger is subject to the satisfaction
or waiver of the following additional conditions:
- our representations and warranties must be true and correct as of the
closing date, except representations and warranties that speak as of an
earlier date, which must be true and correct as of that earlier date,
subject to any exceptions that have not had or would not be reasonably
likely to have a material adverse effect on us, and we have delivered BNP
Paribas and Chauchat a certificate to that effect;
- we must have performed in all material respects all obligations that we
are required to perform prior to the closing date;
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- all third party approvals necessary for the conduct of the business of
the surviving corporation must have been obtained and be in full force
and effect, except for any approvals that would not result in a material
adverse effect on the surviving corporation if not obtained; and
- the required regulatory approvals must not impose any conditions that
would reasonably be expected to materially and adversely impact the
surviving corporation after the merger or materially reduce the benefits
of the merger to the extent that BNP Paribas would not have entered into
the merger agreement had the condition been known at the time.
Conditions to BancWest's Obligations. Our obligation to complete the
merger is subject to the satisfaction or waiver of the following additional
conditions:
- BNP Paribas' and Chauchat's representations and warranties must be true
and correct as of the closing date, except representations and warranties
that speak as of an earlier date which must be true and correct as of
that earlier date, subject to any exceptions that have not had or would
not be reasonably likely to have a material adverse effect on BNP Paribas
or Chauchat, as the case may be, and we have received a certificate from
them to that effect; and
- BNP Paribas and Chauchat must have performed in all material respects all
obligations that each of them must perform under the merger agreement
prior to the closing date.
BOARD OF DIRECTORS' COVENANT TO RECOMMEND.
In the merger agreement, we agreed to recommend, through our board of
directors, that our stockholders adopt the merger agreement at the special
meeting. Our board of directors may not withdraw, modify or change this
recommendation except if, upon the recommendation of the special committee and
after consultation with outside counsel, the board of directors determines in
good faith that failure to take that action would be reasonably likely to
constitute or result in a breach of its fiduciary duties under applicable law.
NO SOLICITATION OF OTHER OFFERS.
The merger agreement provides that neither we nor our representatives will:
- initiate, solicit or knowingly encourage the submission of any
acquisition proposal, as described below; or
- except as provided below, provide any nonpublic information relating to
us to any person relating to an acquisition proposal or engage in any
negotiations concerning an acquisition proposal.
The merger agreement permits us to comply with the Securities Exchange Act
of 1934 or other applicable law with regard to an acquisition proposal. In
addition, if we receive an unsolicited good faith written proposal prior to the
special meeting, we may discuss with or provide nonpublic information to the
person making that acquisition proposal if:
- our board of directors, acting upon the recommendation of the special
committee, determines in good faith after consultation with outside legal
counsel that the failure to take any such action would be reasonably
likely to constitute or result in a breach its fiduciary duties under
applicable law;
- our board of directors, acting upon the recommendation of the special
committee, determines in good faith after consultation with the financial
advisor to the special committee that such acquisition proposal is, or
has a reasonable likelihood of resulting in a proposal which is, superior
to the merger from a financial point of view and is reasonably capable of
being completed; and
- we enter into a confidentiality agreement with the person making the
proposal having terms that are no less favorable to us than the
confidentiality terms in the merger agreement.
We have agreed to keep BNP Paribas informed of the identity of any person
making an acquisition proposal and the status of any material discussions.
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For purposes of the merger agreement, the term "acquisition proposal"
means, any offer or proposal for, or indication of interest in:
- a merger, consolidation or any similar transaction involving us or any of
our significant subsidiaries;
- a purchase, lease or other acquisition or assumption of all or
substantially all of our assets, or all or substantially all of the
assets or deposits of any of our significant subsidiaries;
- a purchase or other acquisition of our voting securities that, if
completed, would result in any person beneficially owning securities
representing 25% or more of our total voting power, or that of any of our
significant subsidiaries; or
- any substantially similar transaction.
TERMINATION OF THE MERGER AGREEMENT.
We, if the termination has been approved by the special committee, and BNP
Paribas may by mutual written consent terminate the merger agreement at any time
prior to the completion of the merger, whether before or after stockholder
approval has been obtained.
In addition, either we, upon the recommendation of the special committee,
or BNP Paribas may terminate the merger agreement if:
- any governmental entity that must grant a required regulatory approval
has denied approval of the merger and the denial has become final and
nonappealable, or any governmental entity of competent jurisdiction
issues a final nonappealable injunction permanently enjoining or
otherwise prohibiting the merger, except that this right to terminate
will not be available to any party whose failure to comply with the
merger agreement causes or results in that action;
- the merger is not completed on or before January 30, 2002, except that
this right to terminate will not be available to any party whose failure
to comply with the merger agreement causes or results in the failure to
complete the merger by that date;
- the other party materially breaches a representation, warranty or
covenant in the merger agreement and the breach is not cured within 30
days after notice of the breach; except that if the breach relates to our
covenant not to solicit other offers, then BNP Paribas may terminate if
we fail to cure the breach within 5 days after notice; or
- at the special meeting the merger agreement is not adopted by two-thirds
of the shares outstanding and entitled to vote at the special meeting;
except that this right to terminate will not be available to BNP Paribas
if it has failed to vote its shares of Class A common stock in favor of
adoption of the merger agreement.
BNP Paribas may terminate the merger agreement if:
- our board of directors, by vote or consent of a majority of the eleven
non-Class A directors, or the special committee
- withdraws or changes its recommendation for adoption of the merger
agreement in a manner which is adverse to BNP Paribas; or
- recommends to our stockholders any acquisition proposal by a third
party; or
- any required regulatory approval is granted subject to any final and
nonappealable conditions which would reasonably be expected to materially
and adversely impact the surviving corporation after the merger or
materially reduce the benefits of the merger so that BNP Paribas would
not have entered into the merger agreement had the condition been known
at the time.
We may terminate the merger agreement without BNP Paribas' consent prior to
obtaining stockholder approval if our board of directors, acting upon the
recommendation of the special committee, authorizes us to
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enter into an agreement with respect to an acquisition proposal from a third
party concurrently with such termination, provided that
- our board of directors complies with the provisions of the merger
agreement relating to solicitation of other offers,
- our board of directors, acting upon the recommendation of the special
committee and in consultation with the financial advisor to the special
committee determines in good faith that the acquisition proposal is
superior to the merger from a financial point of view and, other than
with respect to obtaining stockholder approval, is reasonably capable of
being completed,
- at least five business days pass from the date BNP Paribas receives
written notice from us that our board of directors is prepared to accept
the acquisition proposal and BNP Paribas has not agreed to increase the
merger consideration to be paid to the stockholders and/or revise the
other terms of the merger agreement so that the terms, taken together as
revised, in the good faith judgment of the board of directors, acting
upon the recommendation of the special committee, are superior to the
consideration and terms of the acquisition proposal, and
- we pay a fee to BNP Paribas as described below.
TERMINATION FEES.
We must pay to BNP Paribas a fee of $100 million if the merger agreement is
terminated:
(1) by us concurrently with our acceptance of an acquisition proposal
from a third party;
(2) by BNP Paribas if there is an intentional breach of any of our
representations, warranties or covenants;
(3) by BNP Paribas for the reason described in the first bullet point
under BNP Paribas' termination rights; or
(4) by either BNP Paribas or us if stockholder approval is not
obtained at the special meeting;
provided that in the case of (2), (3) and (4), a termination fee will not be
payable unless:
- prior to the termination, an acquisition proposal was made to our
executive management, special committee or board of directors or any
person has publicly announced an intention to make an acquisition
proposal; and
- within twelve months of the termination, we or one of our subsidiaries
completes an acquisition proposal or enters into a definitive agreement
with respect to an acquisition proposal.
CONDUCT OF BUSINESS PENDING THE MERGER.
With limited exceptions, we agreed in the merger agreement that, until the
completion of the merger, we and each of our subsidiaries will:
- carry on our respective businesses in the usual, regular and ordinary
course consistent with past practice;
- use all reasonable efforts to preserve intact our present business
organization, employees and advantageous business relationships and
retain the services of our key officers and key employees;
- not take any intentional action that would delay or adversely affect in
any material respect the ability to obtain any requisite regulatory
approval; and
- use all reasonable efforts to obtain any third party approvals necessary
for the surviving corporation to conduct its business following the
completion of the merger.
We have also agreed that, until completion of the merger, except as
expressly contemplated or permitted by the merger agreement or consented to in
writing by BNP Paribas, which consent, other than in the case of
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the matters described in the first four bullet points below, will not be
unreasonably withheld, we will not and will not permit any of our subsidiaries
to:
- adjust, split, combine or reclassify any capital stock;
- make, declare or pay dividends, other than regular annual or quarterly
cash dividends not to exceed $0.19 per share per quarter, a pro rata
dividend based on the number of days elapsed between the most recent
dividend record date and the effective date of the merger or dividends
paid in the ordinary course of business by any of our wholly owned
subsidiaries;
- repurchase, redeem or otherwise acquire any shares of our respective
capital stock or any other equity interests;
- grant any additional options or restricted shares, or any capital stock
or other equity interests;
- enter into any voting agreement or arrangement;
- incur, assume or guarantee any long-term indebtedness for borrowed money
or incur other capital expenditures, obligations or liabilities, other
than in the ordinary course of business, consistent with past practice;
- dispose of any material properties or assets or cancel or release any
material indebtedness;
- make any material investment in any entity, other than in our wholly
owned subsidiaries or in the ordinary course of business;
- enter into, terminate or make any material change to any material lease,
contract or agreement, other than in the ordinary course of business;
- change employee benefit plans or compensation of directors, executive
officers or employees, other than in the ordinary course of business
consistent with past practice;
- pay or otherwise settle any material claim, action or proceeding, except
in the ordinary course of business consistent with past practice;
- change our respective accounting methods or methods of reporting for tax
purposes, except as required by changes in GAAP or changes in applicable
law;
- amend our respective certificates of incorporation or by-laws;
- take any intentional actions that would result, or might reasonably be
expected to result, in any conditions to the merger not being satisfied;
or
- agree to, commit to, or take any action described above.
REPRESENTATIONS AND WARRANTIES.
In the merger agreement, we and BNP Paribas each made representations and
warranties relating to, among other things:
- corporate organization and existence;
- corporate power and authority to enter into and perform its obligations
under, and enforceability of, the merger agreement;
- required consents and approvals of governmental entities and absence of
conflicts;
- absence of specified changes or events; and
- legal proceedings and regulatory actions.
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In the merger agreement, BNP Paribas also made representations and
warranties relating to the availability of the funds necessary to complete its
obligations under the merger agreement. We made representations and warranties
relating to, among other things:
- the recommendation of the special committee to our board of directors
regarding the merger agreement and the merger and the approval of the
merger agreement by our board of directors;
- capitalization;
- the stockholder vote required to adopt the merger agreement;
- filing of all material regulatory reports;
- financial statements;
- receipt of the opinion of Goldman, Sachs & Co., financial advisor to the
special committee;
- broker's fees;
- tax matters;
- employee benefit matters;
- documents filed with the Securities and Exchange Commission;
- licenses and compliance with applicable laws;
- material contracts;
- agreements with regulatory agencies;
- absence of undisclosed liabilities;
- environmental matters; and
- transactions with affiliates.
EMPLOYEE BENEFITS.
BNP Paribas has agreed to maintain, or to cause the surviving corporation
to maintain, for two years after the merger, employee benefit plans that will
provide benefits to our employees that are no less favorable, in the aggregate,
than those provided by our current benefit plans. However, BNP Paribas is not
obligated to maintain these plans if it provides, at an earlier date, employee
benefit plans to our employees with benefits no less favorable in the aggregate
than those provided to similarly situated BNP Paribas employees. BNP Paribas has
further agreed to amend existing benefit plans that provide for benefits based
on performance targets as soon as practicable after the merger in consultation
with our chief executive officer to adjust the performance targets to reflect
new and reasonable performance targets. Pursuant to the merger agreement, BNP
Paribas also intends to provide an opportunity for senior executives of the
surviving corporation to participate in a BNP Paribas stock option program after
the merger and for other salaried employees of the surviving corporation (not
including such senior executives) to participate in a BNP Paribas discounted
stock purchase program, so long as the awards do not subject BNP Paribas to
reporting requirements with the Securities and Exchange Commission additional to
or different than those to which it is currently subject. Awards will be
determined by BNP Paribas in consultation with the chief executive officer of
the surviving corporation.
AMENDMENT, EXTENSION AND WAIVER.
The parties may amend the merger agreement by action taken or authorized by
their respective boards of directors, at any time before or after adoption of
the merger agreement by our stockholders. However, after adoption of the merger
agreement by our stockholders, no amendment may be made which by law requires
further approval by our stockholders, unless we obtain that further approval.
All amendments to the merger agreement must be in writing signed by us, BNP
Paribas and Chauchat.
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At any time before the completion of the merger, each of the parties to the
merger agreement may, by written action taken or authorized by its respective
boards of directors, to the extent legally allowed:
- extend the time for the performance of any of the obligations or other
acts of the other parties provided for in the merger agreement for its
benefit;
- waive any inaccuracies in the representations and warranties of the other
parties contained in the merger agreement or in any document delivered
pursuant to the merger agreement for the waiving party's benefit; and
- waive compliance with any of the agreements or conditions contained in
the merger agreement for the waiving party's benefit.
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OTHER MATTERS
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table shows the beneficial ownership of all classes of our
capital stock for
- each director,
- each named executive officer,
- all directors and executive officers as a group, and
- each person known by us to be a beneficial owner of more than 5% of the
common stock and the Class A common stock.
Each individual has sole voting and investment power with respect to the
shares he or she beneficially owns, unless otherwise reflected in a footnote.
The table is based upon information furnished by each of these persons or, in
the case of each 5% owner, based upon a Schedule 13D or 13G filed with the
Securities and Exchange Commission. The listing for BNP Paribas pertains to
Class A common stock. All other listings refer to common stock. All information
is, unless otherwise indicated, as of July 27, 2001. Percentages of each class
are based upon the 68,738,373 common shares and the 56,074,874 Class A shares
outstanding on July 27, 2001. In accordance with SEC rules, the percentages of
common stock owned by certain individuals and groups also include the options
described in note (1), but those options cannot be voted at the special meeting.
<Table>
<Caption>
SHARES BENEFICIALLY PERCENT OF
OWNED(1) CLASS
------------------- ----------
DIRECTORS
Jacques Ardant.............................................. 0 *
John W. A. Buyers........................................... 14,409 *
Walter A. Dods, Jr. ........................................ 16,534,892(2) 23.9%
Dr. Julia Ann Frohlich...................................... 6,150 *
Robert A. Fuhrman........................................... 4,000 *
Paul Mullin Ganley.......................................... 15,272,748(3) 22.2%
David M. Haig............................................... 15,255,117(4) 22.2%
John A. Hoag................................................ 47,242(5) *
Bert T. Kobayashi, Jr. ..................................... 15,787(6) *
Michel Larrouilh............................................ 8,000 *
Pierre Mariani.............................................. 0 *
Fujio Matsuda............................................... 9,509 *
Don J. McGrath.............................................. 266,110 *
Rodney R. Peck.............................................. 400 *
Edouard Sautter............................................. 0 *
Joel Sibrac................................................. 24,625 *
John K. Tsui................................................ 505,684(7) *
Jacques Henri Wahl.......................................... 0 *
Fred C. Weyand.............................................. 15,274,087(8) 22.2%
Robert C. Wo................................................ 208,240(9) *
OTHER NAMED EXECUTIVE OFFICERS
Donald G. Horner............................................ 316,633(10) *
Howard H. Karr.............................................. 386,107(11) *
All directors and executive officers as a group (24
persons).................................................. 18,203,500 26.0%
</Table>
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<Table>
<Caption>
SHARES BENEFICIALLY PERCENT OF
OWNED(1) CLASS
------------------- ----------
5% OWNERS OF COMMON STOCK
David M. Haig, Fred C. Weyand, Paul Mullin Ganley and Walter
A. Dods, Jr., as trustees under the Will and of the Estate
of S.M. Damon, 999 Bishop Street, Honolulu, Hawaii
96813..................................................... 15,200,000(12) 22.1%
5% OWNERS OF CLASS A COMMON STOCK
BNP Paribas
16, boulevard des Italiens
75009 Paris, France....................................... 56,074,874(13) 100%
</Table>
- ---------------
* Less than 1%.
Notes to Security Ownership Table:
<Table>
Note (1) All amounts and percentages refer to common stock, unless
otherwise indicated. Data include the following number of
shares of common stock that may be acquired through
exercisable stock options within 60 days from July 27, 2001,
not including any shares of common stock that become
exercisable due to approval or consummation of the proposed
merger; Mr. Dods, 575,829; Mr. McGrath, 132,223; Mr. Tsui,
302,623; Mr. Horner, 119,681; Mr. Karr, 164,110 (including
options to acquire 4,343 shares held by his wife); Mr.
Sibrac, 24,007; all directors and executive officers as a
group, 1,401,941.
Note (2) Mr. Dods' reported beneficial ownership of common stock
includes 1,848 shares held in his wife's individual
retirement account, as to which Mr. Dods disclaims
beneficial ownership; 15,200,000 shares owned by the Estate
of S.M. Damon, as to which Mr. Dods shares voting and
investment powers; and 166,952 shares owned by First
Hawaiian Foundation, as to which Mr. Dods holds shared
voting and investment powers. Mr. Dods disclaims beneficial
ownership of the shares owned by the First Hawaiian
Foundation, and of shares owned by Alexander & Baldwin,
Inc., of which Mr. Dods is a director.
Note (3) Mr. Ganley's reported beneficial ownership of common stock
includes 15,200,000 shares owned by the Estate of S.M. Damon
as to which Mr. Ganley shares voting and investment powers;
72,688 shares in his revocable living trust, a money
purchase pension plan and an individual retirement account
as to which he has sole voting and investment powers; and 60
shares for which he has shared voting and investment powers.
Note (4) Mr. Haig's reported beneficial ownership of common stock
includes 15,200,000 shares owned by the Estate of S.M. Damon
as to which Mr. Haig shares voting and investment powers. He
is beneficiary of an HR-10 plan holding 12,607 shares of
common stock, as to which he has sole voting and investment
powers.
Note (5) Mr. Hoag's reported beneficial ownership of common stock
includes 20,040 shares in his wife's revocable living trust
as to which Mr. Hoag disclaims beneficial ownership and
1,995 shares held jointly with his wife.
Note (6) Mr. Kobayashi's reported beneficial ownership of common
stock includes 4,464 shares held in his wife's IRA account
and revocable living trust as to which he disclaims
beneficial ownership.
</Table>
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<Table>
Note (7) Mr. Tsui's reported beneficial ownership of common stock
includes 4,000 shares held as trustee of his daughter's
trust, as to which he holds sole voting and investment
powers; 4,000 shares held in his wife's trust; 2,858 shares
held by two grandchildren's trusts, and 5,716 shares held by
the Frances K. and John K. Tsui Foundation, as to which Mr.
Tsui holds shared voting and investment powers; and 166,952
shares owned by First Hawaiian Foundation, as to which Mr.
Tsui holds shared voting and investment powers. Mr. Tsui
disclaims beneficial ownership of the shares owned by his
wife's trust, the grandchildren's trusts, and the
foundations. Mr. Tsui's reported stock options include an
option to acquire 40,340 shares of common stock held by his
daughter's trust.
Note (8) Mr. Weyand's reported beneficial ownership of common stock
includes 15,200,000 shares owned by the Estate of S.M. Damon
as to which he shares voting and investment powers and
32,807 shares in his wife's revocable living trust as to
which he shares voting and investment powers.
Note (9) Mr. Wo's reported beneficial ownership of common stock
includes 16,000 shares held by the Betty and Bob Wo
Foundation and 174,000 shares held by C.S. Wo & Sons, Ltd.
Mr. Wo shares voting and investment powers as to all such
shares.
Note (10) Mr. Horner's reported beneficial ownership of common stock
includes 166,952 shares owned by First Hawaiian Foundation,
as to which Mr. Horner holds shared voting and investment
powers. Mr. Horner disclaims beneficial ownership of the
shares owned by First Hawaiian Foundation.
Note (11) Mr. Karr's reported beneficial ownership of common stock
includes 156 shares owned by his wife directly or as
custodian, options held by his wife (see Note (1)), and
166,952 shares owned by First Hawaiian Foundation, as to
which Mr. Karr holds shared voting and investment powers.
Mr. Karr disclaims beneficial ownership of the shares and
options owned by his wife and of the shares owned by First
Hawaiian Foundation.
Note (12) Messrs. Haig, Weyand, Ganley and Dods are directors of
BancWest. Mr. Dods is also the Chairman and Chief Executive
Officer of BancWest. The trustees have shared voting and
investment powers as to shares owned by the Estate of S.M.
Damon.
Note (13) Represents 44.9% of outstanding voting stock. BNP Paribas
holds sole voting and dispositive power with respect to
54,993,962 shares, and shared voting and dispositive power
with respect to 1,080,912 Class A shares owned by an
indirect wholly owned subsidiary.
</Table>
TRANSACTIONS IN CAPITAL STOCK BY CERTAIN PERSONS
BANCWEST PRIOR PUBLIC OFFERINGS.
We have made one underwritten public offering of our common stock for cash
in the past three years that was registered under the Securities Act of 1933. On
May 19, 1999, before our December 15, 1999, two-for-one stock split, we offered
350,000 shares of common stock to the public at a price of $37.0625 per share.
As a result we received $12,971,875 in aggregate net proceeds, before expenses.
Goldman, Sachs & Co. acted as underwriter with respect to the offering.
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BANCWEST PURCHASES OF COMMON STOCK.
The following table sets forth purchases of our common stock by us during
the past two years including the number of shares purchased on a quarterly basis
and the high, low and average price paid, each adjusted to reflect the
two-for-one stock split effected by us on December 15, 1999.
<Table>
<Caption>
PRICE PER SHARE
NUMBER --------------------------------
OF SHARES LOW HIGH AVERAGE
--------- -------- -------- --------
1999
Third Quarter.................................... 2,400 $21.9375 $21.9375 $21.9375
Fourth Quarter................................... 0 -- -- --
2000
First Quarter.................................... 1,612 $ 15.25 $ 15.25 $ 15.25
Second Quarter................................... 0 -- -- --
Third Quarter.................................... 0 -- -- --
Fourth Quarter................................... 361,556 $ 18.609 $ 20.625 $ 20.625
2001
First Quarter.................................... 1,724 $ 26.10 $ 26.10 $ 26.10
Second Quarter................................... 0 -- -- --
Third Quarter (through , 2001).... 0 -- -- --
</Table>
BNP PARIBAS AND CHAUCHAT PURCHASES OF COMMON STOCK.
The following table sets forth purchases of our common stock by BNP Paribas
during the past two years including the number of shares purchased on a
quarterly basis and the high, low and average price paid, each adjusted to
reflect the two-for-one stock split effected by us on December 15, 1999. BNP
Paribas converted all of the shares of common stock it acquired into Class A
common stock in January and May of 2000. Chauchat has not purchased any of our
common stock in the past two years.
<Table>
<Caption>
PRICE PER SHARE
NUMBER ---------------------------
OF SHARES LOW HIGH AVERAGE
--------- ------ ------ -------
1999
Third Quarter........................................ 1,663,000 $20.44 $21.84 $20.90
Fourth Quarter....................................... 932,400 $20.19 $22.72 $22.17
2000
First Quarter........................................ 1,534,938 $16.25 $16.25 $16.25
Second Quarter....................................... 0 -- -- --
Third Quarter........................................ 0 -- -- --
Fourth Quarter....................................... 0 -- -- --
2001
First Quarter........................................ 0 -- -- --
Second Quarter....................................... 0 -- -- --
Third Quarter (through , 2001)........ 0 -- -- --
</Table>
RECENT TRANSACTIONS IN OUR COMMON STOCK.
During the past 60 days, neither we nor BNP Paribas, nor any of our or its
respective subsidiaries, has engaged in any transactions in our common stock
other than transactions conducted by our bank subsidiaries' trust departments
for fiduciary and custodial accounts. Except for acquisitions of stock through
dividend reinvestment plans and/or increases in BancWest common stock components
of their 401(k) or money purchase plan accounts due to dividend reinvestments or
loan repayments, none of our directors or executive officers has bought or sold
any of our common stock within the past 60 days.
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CERTAIN TRANSACTIONS WITH DIRECTORS, EXECUTIVE OFFICERS AND AFFILIATES
Our bank subsidiaries have made loans to our directors and executive
officers, to members of their families, and to entities related to these
persons. Those loans were made in the ordinary course of business on
substantially the same terms, including interest rates and collateral, as those
prevailing at the time for comparable transactions with other persons. None of
these loans involve more than normal risks of collectibility or present other
unfavorable features.
The following table provides information on loans from BancWest to our
directors and executive officers with balances exceeding $60,000. Each of these
loans is secured by a real property mortgage.
<Table>
<Caption>
AGGREGATE
INDEBTEDNESS
OUTSTANDING CURRENT
NAME AND TITLE JULY 27, 2001 INTEREST RATE
- -------------- ------------- -------------
Howard H. Karr(1)........................................... $185,634 7.25%(2)
Executive Vice President and Chief Financial Officer
Bert T. Kobayashi, Jr. ..................................... $404,364 8.625%(2)
Director $246,878 5.0%(3)
Fujio Matsuda............................................... $ 52,161 7.25%(2)
Director $168,042 5.0%(3)
</Table>
- ---------------
(1) Cosigner of mortgage loan to adult son.
(2) Rate adjusted annually to equal one-year U.S. Treasury index plus 2.5%.
(3) Fixed rate.
During 1999, Bank of the West issued to BNP Paribas a $50,000,000, 7.35%
Subordinated Capital Note due June 24, 2009. That note bears interest at a fixed
rate of 7.35% per annum. The maximum principal amount of that note outstanding
in 2000, and the outstanding principal balance at December 31, 2000 was
$50,000,000.
Bank of the West holds deposits and purchases federal funds from BNP
Paribas. The deposits are generally for terms up to six months and bear interest
at market rates. Federal funds purchases are generally for one to four days. The
maximum daily amount owed by Bank of the West to BNP Paribas in 2000 in
connection with interest-bearing deposits and federal funds purchases was
$517,500,000, and the balance outstanding on December 31, 2000 was $517,000,000.
We and our banking subsidiaries also engage in other transactions in the
ordinary course of business with our affiliates and other related persons as
discussed in our proxy statement for our 2001 annual meeting of stockholders,
which is incorporated by reference into this proxy statement.
OTHER MATTERS FOR ACTION AT THE SPECIAL MEETING
Our board of directors is not aware of any matters to be presented for
action at the special meeting other than those described in this proxy
statement. However, if other matters should properly come before the special
meeting, we intend that the holders of proxies solicited by this proxy statement
will vote on those matters in their discretion; provided that no proxies marked
"against" the proposal to adopt the merger agreement will be voted in favor of a
motion to adjourn or postpone the special meeting for the purpose of soliciting
further proxies in favor of the adoption of the merger agreement.
PROPOSALS BY HOLDERS OF SHARES OF COMMON STOCK
Due to the contemplated consummation of the merger, we do not currently
expect to hold a 2002 annual meeting of stockholders because, following the
merger, we will not be a publicly held company. If the merger is not consummated
for any reason, under the rules of the Securities and Exchange Commission, we
must receive proposals of stockholders intended to be presented at and included
in proxy statement for the 2002 annual meeting of stockholders at our principal
executive offices no later than November 1, 2001. If the date
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of the 2002 annual meeting is more than 30 days before or after April 19, 2002,
however, the new deadline will be described in one of our quarterly reports on
Form 10-Q.
Our by-laws govern the submission of nominations for director or other
business proposals that a stockholder wishes to have considered at a meeting of
stockholders, but that are not included in our proxy statement for that meeting.
Under our by-laws, nominations for directors or other business proposals to be
addressed at the 2002 annual meeting may be made by a stockholder entitled to
vote who has delivered a notice to our Secretary not later than the close of
business on February 8, 2002 and not earlier than January 19, 2002. Any proposal
must also comply with the other provisions contained in our by-laws relating to
stockholder proposals.
EXPERTS
Our consolidated financial statements incorporated in this proxy statement
by reference to our Annual Report on Form 10-K for the year ended December 31,
2000, have been incorporated in reliance on the report of PricewaterhouseCoopers
LLP, our independent accountants, given on the authority of that firm as experts
in accounting and auditing. It is not anticipated that a representative of
PricewaterhouseCoopers will attend the special meeting.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the Securities and Exchange Commission's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further
information on the public reference rooms. Our Securities and Exchange
Commission filings are also available to the public at the Securities and
Exchange Commission's website at http://www.sec.gov. Copies of documents filed
by us with the Securities and Exchange Commission are also available at the
offices of The New York Stock Exchange, 20 Broad Street, New York, New York
10005
We, BNP Paribas and Chauchat have filed a Schedule 13E-3 with the
Securities and Exchange Commission with respect to the merger. As permitted by
the Securities and Exchange Commission, this proxy statement omits certain
information contained in the Schedule 13E-3. The Schedule 13E-3, including any
amendments and exhibits filed or incorporated by reference as a part of it, is
available for inspection or copying as set forth above. Statements contained in
this proxy statement or in any document incorporated in this proxy statement by
reference regarding the contents of any contract or other document are not
necessarily complete and each such statement is qualified in its entirety by
reference to such contract or other document filed as an exhibit with the
Securities and Exchange Commission.
The Securities and Exchange Commission allows us to "incorporate by
reference," into this proxy statement documents we file with the Securities and
Exchange Commission. This 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 proxy statement, and later
information that we file with the Securities and Exchange Commission will update
and supersede that information. We incorporate by reference the documents listed
below and any documents filed by us pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this proxy statement and before the
date of the special meeting:
<Table>
<Caption>
BANCWEST FILINGS (SEC FILE NUMBER 1-14585): PERIODS:
- ------------------------------------------- --------
Annual Report on Form 10-K................ Year ended December 31, 2000
Quarterly Reports on Form 10-Q............ Quarter ended March 31, 2001
Current Reports on Form 8-K............... Filed April 17, 2001, May 11, 2001 and
July 20, 2001
BancWest's proxy statement for its 2001
annual meeting of stockholders.......... Filed March 9, 2001
</Table>
You may request a copy of the documents incorporated by reference into this
proxy statement by writing to, telephoning or e-mailing us.
Requests for documents should be directed to:
Howard H. Karr
BancWest Corporation
P.O. Box 3200
Honolulu, Hawaii 96847
Telephone: 808-525-7000
E-mail address: howard.karr@fhwn.com
If you would like to request documents from us, please do so at least five
business days before the date of the special meeting in order to receive timely
delivery of such documents prior to the special meeting.
This proxy statement does not constitute the solicitation of a proxy in any
jurisdiction to or from any person to whom or from whom it is unlawful to make
such proxy solicitation in such jurisdiction. You should rely only on the
information contained or incorporated by reference in this proxy statement to
vote your shares at the special meeting. We have not authorized anyone to
provide you with information that is different from what is contained in this
proxy statement. This proxy statement is dated , 2001. You should not
assume that the information contained in this proxy statement is accurate as of
any date other than that date, and the mailing of this proxy statement to
stockholders does not create any implication to the contrary.
69
76
ANNEX A
AGREEMENT AND PLAN OF MERGER
DATED AS OF MAY 8, 2001
AS AMENDED AND RESTATED
AS OF JULY 19, 2001
AMONG
BANCWEST CORPORATION,
BNP PARIBAS
AND
CHAUCHAT L.L.C.
77
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
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ARTICLE I
The Merger
SECTION 1.01. The Merger.................................................. 2
SECTION 1.02. Effective Time; Closing..................................... 2
SECTION 1.03. Effect of the Merger........................................ 2
SECTION 1.04. Certificate of Incorporation; By-laws....................... 2
SECTION 1.05. Directors and Officers...................................... 2
SECTION 1.06. Additional Actions.......................................... 3
SECTION 1.07. Change in Structure......................................... 3
ARTICLE II
Conversion of Securities; Exchange of Certificates;
Deposit; Disclosure Schedules
SECTION 2.01. Effect on Capital Stock and LLC Interests................... 3
SECTION 2.02. Exchange Procedures......................................... 4
SECTION 2.03. Company Stock Options; Company Restricted Stock; Plans...... 5
SECTION 2.04. Shares of Dissenting Stockholders........................... 6
SECTION 2.05. Adjustment of Merger Consideration.......................... 6
SECTION 2.06. Disclosure Schedules........................................ 6
ARTICLE III
Representations and Warranties of the Company
SECTION 3.01. Corporate Organization...................................... 7
SECTION 3.02. Capitalization.............................................. 7
SECTION 3.03. Authority; No Violation..................................... 8
SECTION 3.04. Consents and Approvals...................................... 9
SECTION 3.05. Reports..................................................... 9
SECTION 3.06. Financial Statements........................................ 10
SECTION 3.07. Company Action.............................................. 10
SECTION 3.08. Opinion of Financial Advisor................................ 10
SECTION 3.09. Broker's Fees............................................... 10
SECTION 3.10. Absence of Certain Changes or Events........................ 11
SECTION 3.11. Legal Proceedings........................................... 11
SECTION 3.12. Tax Matters................................................. 11
SECTION 3.13. Employee Benefit Plans; ERISA............................... 11
SECTION 3.14. SEC Reports................................................. 13
SECTION 3.15. Licenses; Compliance with Applicable Law.................... 13
SECTION 3.16. Certain Contracts........................................... 13
SECTION 3.17. Agreements with Regulatory Agencies......................... 13
SECTION 3.18. Undisclosed Liabilities..................................... 13
SECTION 3.19. Environmental Matters....................................... 14
SECTION 3.20. Transactions with Affiliates................................ 14
</Table>
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<Table>
<Caption>
PAGE
----
ARTICLE IV
Representations and Warranties of Parent
SECTION 4.01. Corporate Organization...................................... 14
SECTION 4.02. Authority; No Violation..................................... 15
SECTION 4.03. Consents and Approvals...................................... 15
SECTION 4.04. Financing................................................... 16
SECTION 4.05. Litigation; Regulatory Action............................... 16
SECTION 4.06. Absence of Certain Changes.................................. 16
ARTICLE V
Conduct of Business Pending the Merger
SECTION 5.01. Conduct of Business Prior to the Effective Time............. 16
SECTION 5.02. Forbearances of the Company................................. 16
SECTION 5.03. Covenants of Parent......................................... 18
ARTICLE VI
Additional Agreements
SECTION 6.01. Stockholders' Meeting....................................... 18
SECTION 6.02. Regulatory Matters.......................................... 19
SECTION 6.03. Access to Information; Confidentiality...................... 20
SECTION 6.04. Other Offers................................................ 21
SECTION 6.05. Indemnification and Insurance............................... 22
SECTION 6.06. Notification of Certain Matters............................. 23
SECTION 6.07. Public Announcements........................................ 23
SECTION 6.08. Exchange Act and NYSE Filings............................... 23
SECTION 6.09. Reasonable Best Efforts..................................... 23
SECTION 6.10. Performance by Merger Sub................................... 24
SECTION 6.11. Takeover Statutes........................................... 24
SECTION 6.12. Standstill Agreement........................................ 24
SECTION 6.13. Employee Benefits........................................... 24
ARTICLE VII
Conditions Precedent
Conditions to Each Party's Obligation To Effect the
SECTION 7.01. Merger...................................................... 25
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub.......... 26
SECTION 7.03. Conditions to Obligations of the Company.................... 26
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination................................................. 26
SECTION 8.02. Effect of Termination....................................... 28
SECTION 8.03. Amendment................................................... 29
SECTION 8.04. Extension; Waiver........................................... 29
ARTICLE IX
General Provisions
Non-Survival of Representations, Warranties and
SECTION 9.01. Agreements.................................................. 29
SECTION 9.02. Expenses.................................................... 29
</Table>
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<Table>
<Caption>
PAGE
----
SECTION 9.03. Notices..................................................... 29
SECTION 9.04. Definitions and Usage....................................... 30
SECTION 9.05. Accounting Terms............................................ 33
SECTION 9.06. Severability................................................ 33
SECTION 9.07. Entire Agreement; Assignment................................ 33
SECTION 9.08. Parties in Interest......................................... 33
SECTION 9.09. Specific Performance........................................ 33
SECTION 9.10. Governing Law; Consent to Jurisdiction...................... 33
SECTION 9.11. Headings.................................................... 34
SECTION 9.12. Counterparts................................................ 34
SECTION 9.13. Construction................................................ 34
</Table>
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
This AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of July
19, 2001 (this "Agreement"), is by and among BancWest Corporation, a Delaware
corporation (the "Company"), BNP Paribas, a societe anonyme or limited liability
banking corporation organized under the laws of the Republic of France
("Parent"), and Chauchat L.L.C., a Delaware limited liability company ("Merger
Sub");
WHEREAS, the Company, Parent and Merger Sub entered into an Agreement and
Plan of Merger, dated as of May 8, 2001 (the "Original Merger Agreement"), and
they now desire to amend and restate the Original Merger Agreement to, among
other things, permit the Company to pay a pro rata dividend to holders of
Company Common Shares (as defined below) under specified circumstances (it being
understood that all references herein to "the date here of " refer to May 8,
2001);
WHEREAS, the Company has authority to issue (i) 400,000,000 shares of
Common Stock, par value $1.00 per share (the "Company Common Stock"), 68,635,656
of which were outstanding as of May 2, 2001, (ii) 150,000,000 shares of Class A
Common Stock, par value $1.00 per share (the "Class A Common Stock" and together
with the Company Common Stock, the "Company Common Shares"), 56,074,874 of which
were outstanding as of the date hereof and (iii) 50,000,000 shares of Preferred
Stock (the "Company Preferred Stock"), none of which are outstanding;
WHEREAS, Parent and its Subsidiaries own all of the outstanding shares of
Class A Common Stock;
WHEREAS, Parent has proposed to the Board of Directors of the Company that
Parent or an affiliate acquire all of the Company Common Stock;
WHEREAS, Merger Sub is a limited liability company, the sole member of
which is Chauchat Holdings Corporation, a Delaware corporation ("US Parent") and
wholly-owned subsidiary of Parent, formed for the purpose of entering into this
Agreement and consummating the transactions contemplated hereby;
WHEREAS, the Executive Committee of the Board of Directors of the Company
has established a special committee (the "Special Committee"), consisting only
of non-management directors elected by holders of the Company Common Stock, to
consider, among other things, the transactions contemplated by this Agreement
and to make a recommendation to the Board of Directors of the Company with
respect thereto;
WHEREAS, the Special Committee (i) has determined that it is fair to and in
the best interests of the Company and the holders of Company Common Stock to
consummate the merger (the "Merger") of Merger Sub with and into the Company
upon the terms and subject to the conditions set forth in this Agreement and in
accordance with the Delaware General Corporation Law (the "DGCL") and the
Delaware Limited Liability Company Act (the "DLLCA") and (ii) has approved the
Merger and determined that the Merger and the other transactions contemplated by
this Agreement should be approved and declared advisable by the Board of
Directors of the Company and that the Board of Directors of the Company should
resolve to recommend that the holders of Company Common Shares adopt this
Agreement;
WHEREAS, the respective Boards of Directors of the Company and Parent, and
US Parent, as the sole member of Merger Sub, and US Parent have approved and
declared advisable this Agreement and the Merger and the other transactions
contemplated hereby upon the terms and subject to the conditions set forth in
this Agreement and in accordance with the DGCL and the DLLCA and the Board of
Directors of the Company has resolved to recommend that the Company's
stockholders adopt this Agreement and the Merger; and
WHEREAS, the respective Boards of Directors of the Company and Parent have
determined that the Merger is fair to and in the best interests of their
respective stockholders.
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. Upon the terms and subject to the conditions set
forth in Article VII, and in accordance with the provisions of the DGCL and the
DLLCA, at the Effective Time (as defined below), Merger Sub shall be merged with
and into the Company. As a result of the Merger, the separate existence of
Merger Sub shall cease, and the Company shall continue as the surviving
corporation (the "Surviving Corporation") under the name BancWest Corporation.
SECTION 1.02 Effective Time; Closing. The closing of the Merger (the
"Closing") shall take place (i) at the offices of Cleary, Gottlieb, Steen &
Hamilton, One Liberty Plaza, New York, New York at 9:00 a.m. New York City time
on the third business day after all of the conditions set forth in Article VII
have been satisfied or, subject to applicable law, waived (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the satisfaction or waiver of those conditions) in accordance with this
Agreement or (ii) at such other place and time and/or on such other date as
Parent and the Company may agree in writing (the "Closing Date"). Subject to the
provisions of this Agreement, as soon as practicable on the Closing Date, the
parties hereto shall file a certificate of merger (the "Certificate of Merger")
with the Secretary of State of the State of Delaware, in such form as required
by, and executed in accordance with, the DGCL and the DLLCA. The term "Effective
Time" means the date and time of the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware (or such later time as may be
agreed by the parties hereto and specified in the Certificate of Merger).
SECTION 1.03 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of the DGCL and the
DLLCA. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, without further act or deed, all the property, rights,
immunities, privileges, powers, franchises and licenses of the Company and
Merger Sub shall vest in the Surviving Corporation and all debts, liabilities,
obligations, restrictions and duties of each of the Company and Merger Sub shall
become the debts, liabilities, obligations, restrictions and duties of the
Surviving Corporation.
SECTION 1.04 Certificate of Incorporation; By-laws.
(a) Certificate of Incorporation. At the Effective Time, the Certificate
of Incorporation of the Company as in effect immediately prior to the Effective
Time shall be amended so as to read in its entirety as set forth in Exhibit A
hereto, and as so amended shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended in accordance with its terms and
as provided by the DGCL.
(b) By-laws. At the Effective Time, the By-laws of the Company as in
effect immediately prior to the Effective Time shall be amended so as to read in
their entirety as set forth in Exhibit B hereto, and as so amended shall be the
By-laws of the Surviving Corporation until thereafter amended in accordance with
their terms and as provided by the DGCL and the Certificate of Incorporation of
the Surviving Corporation.
SECTION 1.05 Directors and Officers.
(a) Directors. From and after the Effective Time, the directors of the
Company shall be the directors of the Surviving Corporation until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be, in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, the DGCL and this
Agreement.
(b) Officers. From and after the Effective Time, the officers of the
Company immediately prior to the Effective Time shall be the officers of the
Surviving Corporation and shall hold office until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be, in
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accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation, the DGCL and this Agreement.
SECTION 1.06 Additional Actions. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any further deeds,
assignments or assurances in law or any other acts are necessary or desirable to
(a) vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its rights, title or interest in, to or under any of the rights,
properties or assets of the Company or its Subsidiaries, or (b) otherwise carry
out the provisions of this Agreement, the Company and its officers and directors
shall be deemed to have granted to the Surviving Corporation an irrevocable
power of attorney to execute and deliver all such deeds, assignments or
assurances in law and to take all acts necessary, proper or desirable to vest,
perfect or confirm title to and possession of such rights, properties or assets
in the Surviving Corporation and otherwise to carry out the provisions of this
Agreement, and the officers and directors of the Surviving Corporation are
authorized in the name of the Company to take any and all such action.
SECTION 1.07 Change in Structure. Parent may, at any time prior to the
mailing of the Proxy Statement to the stockholders of the Company, change the
method of effecting the combination with the Company to substitute a direct or
indirect Delaware corporate subsidiary of Parent for Chauchat L.L.C., in which
case (i) all references to Merger Sub in this Agreement shall be deemed to refer
to such subsidiary and all references to Merger Sub being a limited liability
company shall be deemed to refer to Merger Sub being a corporation, (ii) all
references to Merger Sub Units shall be deemed to refer to the common stock of
such subsidiary, and (iii) all references to the DLLCA shall be disregarded;
provided, that no such change shall alter or change in any way the consideration
to be issued to holders of Company Common Stock or the holders of Options or
Restricted Shares or impede or delay consummation of the Merger.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; DEPOSIT;
DISCLOSURE SCHEDULES
SECTION 2.01 Effect on Capital Stock and LLC Interests. As of the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any Company Common Shares or any limited liability company
interests of Merger Sub (the "Merger Sub Units"):
(a) Cancellation of Merger Sub Units. All of the Merger Sub Units
issued and outstanding immediately prior to the Effective Time shall be
canceled and retired and shall cease to exist without any consideration
payable therefor.
(b) Cancellation of Company Owned Stock. All shares of Company Common
Stock and Class A Common Stock (if any) that are held in the treasury of
the Company or by any wholly owned Subsidiary of the Company (other than
Company Common Shares owned, directly or indirectly, in trust accounts,
managed accounts and the like or otherwise held in a fiduciary or custodial
capacity that are beneficially owned by third parties ("Fiduciary Shares")
and other than any Company Common Shares held in respect of a debt
previously contracted) shall be canceled and shall cease to exist without
any consideration payable therefor.
(c) Conversion of Company Common Stock. Each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other
than (i) Dissenting Shares, if applicable, and (ii) shares of Company
Common Stock referred to in Section 2.01(b)), shall be converted into the
right to receive from the Surviving Corporation $35.00 in cash (the "Merger
Consideration") without interest thereon upon surrender of the certificate
previously representing such share of Company Common Stock as provided in
Section 2.02(c). As of the Effective Time, all shares of Company Common
Stock (other than (i) Dissenting Shares, if applicable, and (ii) shares of
Company Common Stock referred to in Section 2.01(b)) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist,
and each certificate (a "Certificate") which immediately prior to the
Effective Time represented any such share of Company Common Stock (other
than Certificates representing (i) Dissenting Shares, if applicable, and
(ii) shares of Company Common Stock referred to in Section 2.01(b)) shall
cease to
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have any rights with respect thereto, except the right to receive the
Merger Consideration and any dividends or other distributions to which
holders become entitled in accordance with this Article II upon the
surrender of such Certificate.
(d) Treatment of Class A Common Stock. Each share of Class A Common
Stock issued and outstanding immediately prior to the Effective Time (other
than shares of Class A Common Stock to be canceled pursuant to Section
2.01(b)) shall remain issued and outstanding as Class A Common Stock of the
Surviving Corporation, which shall have the terms and conditions specified
in the Certificate of Incorporation of the Surviving Corporation set forth
in Exhibit A hereto.
SECTION 2.02. Exchange Procedures. (a) At and after the Effective Time,
each Certificate formerly representing shares of Company Common Stock shall
(except as specifically set forth in Section 2.01 and subject to applicable law
in the case of Dissenting Shares) represent only the right to receive the Merger
Consideration, without interest.
(b) At or prior to the Effective Time, Parent shall or shall cause Merger
Sub to deposit, or cause to be deposited, with a bank or trust company
reasonably satisfactory to the Company (it being understood that an affiliate of
Parent or the Company is reasonably satisfactory to the Company) (the "Paying
Agent"), for the benefit of the holders of the Certificates, funds in the
aggregate amount to be paid pursuant to this Article II in exchange for
outstanding shares of Company Common Stock. Any cash deposited with the Paying
Agent shall hereinafter be referred to as the Exchange Fund.
(c) As promptly as practicable after the Effective Time, the Surviving
Corporation shall send or cause to be sent to each holder of record of shares of
Company Common Stock (other than shares that are not to be canceled in exchange
for Merger Consideration pursuant to Section 2.01(c)) immediately prior to the
Effective Time transmittal materials for use in exchanging Certificates for the
Merger Consideration. The Surviving Corporation shall cause any check in respect
of the Merger Consideration (together with any dividends or other distributions
to which holders become entitled in accordance with this Article II upon
surrender of such Certificate) which such person shall be entitled to receive to
be delivered to such stockholder upon delivery to the Paying Agent of
Certificates formerly representing such shares of Company Common Stock (or
indemnity reasonably satisfactory to the Surviving Corporation and the Paying
Agent, if any of such Certificates are lost, stolen or destroyed) owned by such
stockholder. In the event of a transfer of ownership of the shares of Company
Common Stock that is not registered in the transfer records of the Company,
payment may be made to a person other than the person in whose name the
Certificate so surrendered is registered, if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the person requesting
such payment shall pay any transfer or other taxes required by reason of the
payment to a person other than the registered holder of such Certificate or
establish to the satisfaction of the Surviving Corporation that such tax has
been paid or is not applicable. No interest will be paid on any such cash to be
paid pursuant to this Article II upon such delivery. The Surviving Corporation
shall be entitled to deduct and withhold from the Merger Consideration otherwise
payable to any holder of Certificates such amounts (if any) as the Surviving
Corporation determines are required to be deducted or withheld under the Code,
or any provision of United States, state or local tax law or any foreign tax law
applicable as a result of the residence, location, domicile or other facts
relating to the stockholder. To the extent that amounts are so withheld by the
Surviving Corporation, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of such Certificates.
(d) Subject to Section 2.04, at the Effective Time, holders of Company
Common Stock shall cease to be, and shall have no rights as, stockholders of the
Company, other than to receive any dividend or other distribution with respect
to the Company Common Stock with a record date occurring prior to the Effective
Time (including any Pro Rata Dividend) and the Merger Consideration. From and
after the Effective Time, there shall be no transfers on the stock transfer
records of the Company of any shares of the Company Common Stock that were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation or the Paying
Agent for transfer, they shall be canceled and exchanged for the Merger
Consideration deliverable in respect thereof pursuant to this Agreement in
accordance with the procedures set forth in this Section 2.02 together with any
dividends or other distributions
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to which the holder becomes entitled in accordance with this Article II upon the
surrender of such Certificates.
(e) Any funds (including any interest with respect thereto) which have been
made available to the Paying Agent and that remain unclaimed by the former
stockholders of the Company for twelve months after the Effective Time shall be
paid to the Surviving Corporation. Any former stockholders of the Company who
have not theretofore complied with this Article II shall thereafter look only to
the Surviving Corporation and Parent for payment of the Merger Consideration in
respect of each share of Company Common Stock formerly held by such stockholder
as determined pursuant to this Agreement, in each case, without any interest
thereon. Any Merger Consideration remaining unclaimed as of a date which is
immediately prior to such time as such amounts would otherwise escheat to or
become property of any Governmental Entity shall, to the extent permitted by
applicable law, become the property of the Surviving Corporation free and clear
of any claims or interest of any person previously entitled thereto.
Notwithstanding the foregoing, none of the Paying Agent, Parent, the Company,
Merger Sub or the Surviving Corporation shall be liable to any former holder of
Company Common Stock for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Paying
Agent, the Surviving Corporation or Parent, as the case may be, the posting by
such person of a bond in such amount as the Paying Agent, the Surviving
Corporation or Parent, as the case may be, may reasonably direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Paying Agent, the Surviving Corporation or Parent, as the case may be, shall
issue in exchange for such lost, stolen or destroyed Certificate the applicable
Merger Consideration deliverable in respect thereof pursuant to this Agreement
and any dividends or other distributions to which holders become entitled in
accordance with this Article II upon the surrender of such Certificate.
(g) Any portion of the Merger Consideration made available to the Paying
Agent pursuant to this Section 2.02 to pay for shares of Company Common Stock
for which appraisal rights have been perfected in accordance with Section 262 of
the DGCL shall be returned to the Surviving Corporation upon demand.
(h) The Paying Agent shall invest any cash included in the Exchange Fund,
as directed by Parent, on a daily basis; provided, that in the case of any
losses incurred in the Exchange Fund as a result of such investments, Parent
shall, or shall cause the Surviving Corporation, to take all actions necessary
(including by depositing additional cash) to ensure that the Exchange Fund
includes cash sufficient to satisfy the obligations of Parent and the Surviving
Corporation to pay the Merger Consideration payable pursuant to this Article II
and any dividends or other distributions to which holders become entitled in
accordance with this Article II upon the surrender of Certificates. Any interest
and other income resulting from such investments shall be paid to or at the
direction of the Surviving Corporation.
SECTION 2.03. Company Stock Options; Company Restricted Stock; Plans.
(a) Stock Options. At the Effective Time, each option (and any stock
appreciation rights associated therewith) to purchase a share of Company Common
Stock (an "Option" and, collectively, the "Options") outstanding and unexercised
as of the Effective Time granted pursuant to the 1998 Stock Incentive Plan (as
amended), the Stock Incentive Plan (as amended), the California Community
Bancshares Corporation 1993 Stock Option Plan, the Continental Pacific Bank 1990
Amended Stock Option Plan, the SierraWest Bancorp 1996 Stock Option Plan (as
amended), the Sierra Tahoe Bancorp 1988 Stock Option Plan (as amended) and any
other equity-based plans or agreements of or with the Company or any of its
Subsidiaries providing for the granting of options with respect to Company
Common Stock (collectively, the "Company Stock Option Plans") shall be canceled,
whether or not then exercisable or vested, and shall represent the right to
receive the following consideration in settlement thereof. Each Option shall
vest as a result of the Merger and shall become exercisable at or immediately
prior to the Effective Time. The Surviving Corporation (or any trust that is
adopted in connection with any such Company Stock Option Plan) shall pay to the
holder of any Option the excess (rounded to the nearest $0.01), if any, of the
Merger Consideration over such Option's exercise price (the "Option Spread") as
soon as practicable after the Effective Time. All payments made
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pursuant to this Section 2.03(a) shall be reduced by all applicable withholding
taxes and other similar charges.
(b) Restricted Shares. At the Effective Time, each share of restricted
stock (a "Restricted Share" and, collectively, the "Restricted Shares")
outstanding as of the Effective Time issued pursuant to a Company Stock Option
Plan, the Incentive Plan for Key Executives (as amended) or any other
equity-based plans or agreements of or with the Company or any of its
Subsidiaries providing for the granting of restricted stock awards with respect
to Company Common Stock (collectively, the "Company Equity Plans" and together
with the Company Stock Option Plans, the "Company Stock Plans"), to the extent
not already vested, shall vest and shall represent the right to receive the
following consideration in settlement thereof. The Surviving Corporation (or any
trust that is adopted in connection with any such Company Equity Plan) shall pay
to the holder of a Restricted Share the Merger Consideration as soon as
practicable after the Effective Time. All payments made pursuant to this Section
2.03(b) shall be reduced by all applicable withholding taxes and other similar
charges.
(c) As of the Effective Time, the Company shall use its reasonable best
efforts, in consultation with Parent, to remove, or cause to be removed from
each and every plan, program, agreement or arrangement any right of any
participant thereunder to invest in, or receive a distribution in, Company
Common Stock.
SECTION 2.04. Shares of Dissenting Stockholders. (a) Notwithstanding
anything in this Agreement to the contrary, any shares (the "Dissenting Shares")
of Company Common Stock that are issued and outstanding as of the Effective Time
and that are held by a holder who has not voted in favor of the Merger or
consented thereto in writing and who properly demands appraisal of such
Dissenting Shares pursuant to, and who complies in all respects with, Section
262 of the DGCL, shall not be converted into the right to receive the Merger
Consideration as provided in Section 2.01(c), unless and until such holder shall
have failed to perfect, or shall have effectively withdrawn or lost, his or her
right to appraisal under the DGCL, and instead shall be entitled to receive such
consideration as may be determined to be due with respect to such Dissenting
Shares pursuant to and subject to the requirements of Section 262 of the DGCL.
If, after the Effective Time, any such holder shall have failed to perfect or
shall have effectively withdrawn or lost such right, each share of such holder's
Company Common Stock shall thereupon be deemed to have been converted into and
to have become, as of the Effective Time, the right to receive, without
interest, the Merger Consideration, in accordance with Section 2.01 (together
with any dividends or other distributions to which holders of Certificates
become entitled in accordance with this Article II upon the surrender of such
Certificates).
(b) The Company shall give Merger Sub and Parent (i) prompt notice of any
notices or demands (or withdrawals of notices or demands) for appraisal or
payment for shares of Company Common Stock received by the Company and (ii) the
opportunity to participate in and direct all negotiations and proceedings with
respect to any such demands or notices. The Company shall not, without prior
written consent of Merger Sub and Parent, make any payments, or settle, offer to
settle or otherwise negotiate, with respect to any such demands.
(c) Dissenting Shares, if any, after payments of fair value in respect
thereof have been made to the holders thereof pursuant to the DGCL, shall be
canceled.
SECTION 2.05. Adjustment of Merger Consideration. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of Company Common Stock shall have been changed into a
different number of shares of a different class as a result of a stock split,
reverse stock split, stock dividend, subdivision, reclassification, split,
combination, exchange, recapitalization or other similar transaction, the Merger
Consideration and any other number or amount which is based upon the number of
shares of Company Common Stock shall be appropriately adjusted.
SECTION 2.06. Disclosure Schedules. (a) Prior to the execution and
delivery of this Agreement, the Company has delivered to Parent and Merger Sub,
and Parent and Merger Sub have delivered to the Company, a schedule (in the case
of the Company, the "Company Disclosure Schedule," and, in the case of Parent
and Merger Sub, the "Parent Disclosure Schedule") setting forth, among other
things, in each case with respect to specified sections of this Agreement, items
the disclosure of which is necessary or appropriate
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either in response to an express disclosure requirement contained in a provision
hereof or as an exception to one or more of such party's representations or
warranties contained in Article III, in the case of the Company, or Article IV,
in the case of Parent and Merger Sub, or to one or more of such party's
covenants contained in Article V; provided, however, that notwithstanding
anything in this Agreement to the contrary, (i) no such item is required to be
set forth in a Disclosure Schedule as an exception to a representation or
warranty if its absence would not result in the related representation or
warranty being deemed untrue or incorrect under the standard established by
Section 2.06(b), and (ii) the mere inclusion of an item in a Disclosure Schedule
as an exception to a representation or warranty shall not be deemed an admission
by a party that such item represents a material exception or material fact,
event or circumstance or that such item has had or would have a Material Adverse
Effect with respect to the Company or Parent, respectively. Matters disclosed in
any particular section of a Disclosure Schedule shall be deemed to have been
disclosed in any other section with respect to which such matter is relevant so
long as the relevance of such disclosure is readily apparent.
(b) No representation of the Company contained in Article III (other than
Section 3.02, which shall be true in all meaningful respects, and Section
3.10(a)) or of Parent or Merger Sub contained in Article IV shall be deemed
untrue or incorrect for any purpose under this Agreement, and no party hereto
shall be deemed to have breached a representation or warranty for any purpose
under this Agreement, in any case as a consequence of the existence or absence
of any fact, circumstance or event unless such fact, circumstance or event,
individually or when taken together with all other facts, circumstances or
events inconsistent with any representations or warranties contained in Article
III, in the case of the Company, or Article IV, in the case of Parent or Merger
Sub, has had or would be reasonably likely to have a Material Adverse Effect
with respect to the Company or Parent, respectively. For all purposes of
determining whether any facts or events contravening a representation or
warranty contained herein constitute, individually or in the aggregate, a
Material Adverse Effect, representations and warranties contained in Article III
(other than Section 3.10(a)) or IV shall be read without regard to any reference
to materiality or to Material Adverse Effect set forth therein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company Disclosure Schedule, the Company hereby
represents and warrants to each of Parent and Merger Sub as follows:
SECTION 3.01. Corporate Organization. (a) The Company and each of its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended (the
"BHCA"). The Company and each of its Subsidiaries has the corporate or other
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted, and is duly licensed or
qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary.
(b) All of the outstanding shares of capital stock or other securities
evidencing ownership of the Company's Subsidiaries are validly issued, fully
paid and (except as otherwise required by law) non-assessable and, except as set
forth in Section 3.01(b) of the Company Disclosure Schedule, such shares or
other securities are owned by the Company or its wholly owned Subsidiaries free
and clear of any lien, claim, charge, option, encumbrance, mortgage, pledge or
security interest (a "Lien") with respect thereto. The Company Disclosure
Schedule sets forth a list of all persons deemed to be a Subsidiary of the
Company or any of its Subsidiaries within the meaning of the BHCA together with
each such entity's jurisdiction of organization.
SECTION 3.02. Capitalization. The authorized capital stock of the Company
consists solely of (a) 400,000,000 shares of Company Common Stock, of which
68,635,656 shares (including 29,778 Restricted Shares) were outstanding as of
May 2, 2001; (b) 150,000,000 shares of Class A Common Stock, of which 56,074,874
are outstanding as of the date hereof; and (c) 50,000,000 shares of Company
Preferred Stock, none of which are outstanding as of the date hereof. As of May
2, 2001, 2,421,106 shares of Company
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Common Stock, no shares of Class A Common Stock and no shares of Company
Preferred Stock were held in the Company's treasury. As of May 2, 2001, no
shares of Company Common Stock or Class A Common Stock were reserved for
issuance, except for 8,605,476 shares of the Company Common Stock reserved for
issuance in connection with the Company Stock Option Plans and except for
56,074,874 shares of Company Common Stock reserved for issuance upon conversion
of Class A Common Stock. All of the issued and outstanding shares of Company
Common Stock and Class A Common Stock have been duly authorized and validly
issued and are fully paid, non-assessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. As of May 2, 2001,
5,180,806 shares of Company Common Stock were subject to outstanding Options.
There are not any bonds, debentures, notes or other indebtedness of the Company
or any of its Subsidiaries having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on matters on which
holders of Company Common Stock may vote ("Voting Debt"). Except as set forth
above and except as provided in this Agreement, there are not any options,
warrants, rights, scrip, rights to subscribe to, calls, convertible or
exchangeable securities, "phantom" stock rights, stock appreciation rights,
stock-based performance units, commitments, Contracts, arrangements or
undertakings of any kind to which the Company or any of its Subsidiaries is a
party or by which any of them is bound (i) obligating the Company or any of its
Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock of, or other equity interests in, or
any security convertible into or exercisable for or exchangeable into any
capital stock of, or other equity interest in, the Company or any of its
Subsidiaries or any Voting Debt, (ii) obligating the Company or any of its
Subsidiaries to issue, grant, extend or enter into any such option, warrant,
right, scrip, call, security, commitment, Contract, arrangement or undertaking
or (iii) that give any person the right to receive any economic benefit or right
similar to or derived from the economic benefits and rights accruing to holders
of capital stock of, or other equity interests in, the Company or any of its
Subsidiaries. Except as set forth in Section 3.02 of the Company Disclosure
Schedule, since May 2, 2001, the Company has not (i) issued any shares of its
capital stock or any securities convertible into or exercisable for any shares
of its capital stock, other than shares of Company Common Stock issued upon the
exercise, settlement or conversion of Options, outstanding as of such date or
(ii) taken any actions which would cause an antidilution adjustment under any
outstanding Options. Except as set forth in Section 3.02 of the Company
Disclosure Schedule, there are no outstanding contractual obligations of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire,
or to register for sale, any shares of capital stock of, or other equity
interests in, the Company or any of its Subsidiaries. Except as set forth in
Section 3.02 of the Company Disclosure Schedule, there are no outstanding
contractual obligations of the Company or any of its Subsidiaries to vote or to
dispose of any shares of the capital stock of any of its Subsidiaries.
SECTION 3.03 Authority; No Violation. (a) The Company has full corporate
power and authority to execute and deliver this Agreement and, subject to the
adoption of this Agreement by the requisite vote of holders of Company Common
Shares and the filing and recordation of appropriate merger documents under
applicable law, to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby have been duly and validly
approved by all necessary corporate action and no other corporate proceedings on
the part of the Company (other than the Company Stockholder Approval (as defined
below) and the filing and recordation of appropriate merger documents as
required by the DGCL and the DLLCA) are necessary to approve this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Company and (assuming due
authorization, execution and delivery by Parent and Merger Sub) constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(b) Neither the execution and delivery of this Agreement by the Company,
nor the consummation by the Company of the Merger, nor compliance by the Company
with any of the terms or provisions hereof, will (i) violate any provision of
the Certificate of Incorporation, By-laws or other organizational documents of
the Company or any of its Subsidiaries or (ii) assuming that the consents and
approvals and waiting periods referred to in Section 3.04 are duly obtained or
satisfied, violate any statute (including Section 203 of the DGCL), code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to the Company or any of its Subsidiaries or any of their respective
properties or assets, or violate, conflict with,
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result in a breach of any provision of or the loss of any material benefit
under, constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or a right
of termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien (or have any of such results or effects, upon
notice or lapse of time, or both) upon any of the respective properties or
assets of the Company or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement, contract, permit, concession, franchise, or other
instrument, ("Contract") to which the Company or any of its Subsidiaries is a
party, or by which they or any of their respective properties, assets or
business activities may be bound or affected.
(c) The only vote of holders of any class or series of the Company's
capital stock necessary to adopt this Agreement and the Merger is the adoption
of this Agreement by the holders of a majority of the outstanding Company Common
Shares, voting together as a single class (the "Company Stockholder Approval").
SECTION 3.04. Consents and Approvals. Except for (a) the requisite filings
with, notices to and approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") under the BHCA, (b) the filing of any
required applications or notices with the California State Banking Department
and Oregon, Washington, Idaho, Nevada, New Mexico and Hawaii banking
authorities, (c) the filing with the U.S. Securities and Exchange Commission
(the "SEC") of the Proxy Statement in definitive form, (d) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL and the DLLCA, (e) any consents, authorizations, approvals,
filings or exemptions in connection with compliance with the applicable
provisions of supranational, federal, state and foreign laws (including, without
limitation, securities and insurance laws) relating to the regulation of
broker-dealers, futures commission merchants, commodities trading advisors,
commodities pool operators, investment advisers and insurance agencies and any
applicable domestic or foreign industry self-regulatory organization or stock
exchange ("SRO"), and the rules of the New York Stock Exchange (the "NYSE"), (f)
the Company Stockholder Approval, (g) the expiration of any applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act") or any consents, authorizations, approvals, filings or
exemptions required by any other applicable antitrust law or merger regulation,
(h) such additional consents and approvals set forth in Section 3.04 of the
Company Disclosure Schedule, and (i) consents, authorizations, approvals,
filings and registrations the failure of which to obtain or make would not be
reasonably likely to result, individually or in the aggregate, in a Material
Adverse Effect with respect to the Company, no consents, authorizations or
approvals of or filings or registrations with any supranational, federal, state,
local or foreign court, administrative agency or commission or other
governmental or regulatory authority or instrumentality (each a "Governmental
Entity") or of or with any other person by or on behalf of the Company, are
necessary in connection with the execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby.
SECTION 3.05. Reports. (a) The Company and each of its Subsidiaries have
filed all material reports, registrations, statements and other documents,
together with any amendments required to be made with respect thereto, that they
were required to file since January 1, 1999 with (a) the SEC, (b) any SRO and
(c) any other federal, state, local or foreign governmental or regulatory agency
or authority (collectively with the SEC and the SROs, "Regulatory Agencies"),
and have paid all fees and assessments due and payable in connection therewith.
Except for normal examinations conducted by a Regulatory Agency in the regular
course of the business of the Company and its Subsidiaries, no Regulatory Agency
has initiated any proceeding or, to the Knowledge of the Company, investigation
into the business or operations of the Company or any of its Subsidiaries since
January 1, 1999.
(b) Presentation materials and reports prepared by or under the direction
of management of the Company and distributed or made available to the members of
the Board of Directors of the Company since January 1, 1999 and prior to the
date hereof were, taking into account the subject matter and purpose thereof,
complete and accurate in all material respects and, except to the extent
superseded by materials made available to the directors of the Company prior to
the date hereof, did not contain any untrue statement of a material fact or fail
to state any material fact required to be stated therein or necessary in order
to make the
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statements therein, in light of the circumstances in which they were made (and
other information generally available to the directors), not misleading.
SECTION 3.06. Financial Statements. The Company has previously made
available to Parent copies of (a) the consolidated balance sheets of the Company
and its Subsidiaries as of December 31, 1999 and December 31, 2000, (b) the
related consolidated statements of income, changes in stockholders' equity and
cash flows for the fiscal years 1998 through 2000, inclusive, as reported in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
2000, filed with the SEC under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), in each case accompanied by the audit report of the
Company's independent public accountants, and (c) the unaudited consolidated
balance sheets of the Company at March 31, 2000 and March 31, 2001 and related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the three month periods then ended to be included in the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2001. The financial statements referred to in the preceding sentence (including
the related notes, where applicable) fairly present in all material respects the
consolidated financial position of the Company and its consolidated Subsidiaries
for the respective fiscal periods or as of the respective dates therein set
forth, and any financial statements filed by the Company with the SEC under the
Exchange Act after the date of this Agreement (including the related notes,
where applicable) will fairly present in all material respects (including the
related notes, where applicable) (subject, in the case of the unaudited
statements, to recurring audit adjustments normal in nature and amount) the
results of the consolidated operations and changes in stockholders' equity and
consolidated financial position of the Company and its Subsidiaries for the
respective fiscal periods or as of the respective dates therein set forth; each
of such statements (including the related notes, where applicable) comply (and,
in the case of the financial statements filed after the date of this Agreement,
will comply) in all material respects with applicable accounting requirements
and with the published rules and regulations of the SEC with respect thereto;
and each of such statements (including the related notes, where applicable) has
been prepared (and, in the case of the financial statements filed after the date
of this Agreement, will be prepared) in all material respects in accordance with
United States generally accepted accounting principles ("GAAP") consistently
applied during the periods involved, except, in each case, as indicated in such
statements or in the notes thereto or, in the case of unaudited statements, as
permitted by Form 10-Q promulgated by the SEC.
SECTION 3.07. Company Action. (a) The Special Committee (i) has been duly
authorized and constituted and (ii) at a meeting duly called and held has (A)
determined that this Agreement and the Merger are fair to, and in the best
interests of, the Company and the holders of Company Common Stock and (B)
recommended that this Agreement and the transactions contemplated hereby should
be approved and adopted by the Board of Directors of the Company and that the
Board of Directors of the Company recommend that the holders of Company Common
Stock adopt this Agreement.
(b) The Board of Directors of the Company (at a meeting duly called and
held) has by the requisite vote of directors under the DGCL, the Standstill
Agreement and the Company's Certificate of Incorporation and By-Laws (i)
approved and declared advisable this Agreement, the Merger and the other
transactions contemplated hereby, and (ii) subject to Sections 6.01(a) and 6.04
hereof, resolved to recommend that the holders of Company Common Stock adopt
this Agreement.
SECTION 3.08. Opinion of Financial Advisor. The Special Committee and the
Board of Directors of the Company have received the opinion, dated as of the
date hereof, of Goldman, Sachs & Co. (the "Special Committee Financial
Advisor"), to the effect that, as of the date thereof, and subject to the
matters set forth therein, the Merger Consideration is fair to the holders of
the Company Common Stock from a financial point of view.
SECTION 3.09. Broker's Fees. Neither the Company nor any of its
Subsidiaries nor any of their respective officers or directors has employed any
broker or finder or incurred any liability for any broker's fees, commissions or
finder's fees in connection with the Merger or the other transactions
contemplated hereby, except that the Company has retained the Special Committee
Financial Advisor, pursuant to compensation arrangements which have been
disclosed in writing to Parent prior to the date of this Agreement.
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SECTION 3.10. Absence of Certain Changes or Events. (a) Except as
disclosed in the Company Reports (as defined in Section 3.14) filed prior to the
date of this Agreement, since December 31, 2000, no event has occurred and no
fact or circumstance has come to exist or come to be known which, directly or
indirectly, individually or taken together with all other facts, circumstances
and events (described in any paragraph of this Article III or otherwise), has
had, or is reasonably likely to have, a Material Adverse Effect with respect to
the Company.
(b) As of the date of this Agreement, except as disclosed in the Company
Reports filed prior to the date hereof or as set forth in Section 3.10 of the
Company Disclosure Schedule, since December 31, 2000, the Company and its
Subsidiaries have carried on their respective businesses in the ordinary and
usual course consistent with their past practices (excluding the incurrence of
fees and expenses of professional advisors related to this Agreement and the
transactions contemplated hereby) and, except insofar as required by a change in
GAAP or applicable regulatory accounting, there has not been any material change
in accounting methods, principles or practices by the Company or any of its
Subsidiaries.
SECTION 3.11. Legal Proceedings. (a) Except as disclosed in Company
Reports filed prior to the date of this Agreement, neither the Company nor any
of its Subsidiaries is a party to any, and there are no pending or, to the
Knowledge of the Company, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations of any
nature ("Claims and Proceedings") (i) against the Company or, to the Knowledge
of the Company, any of its Subsidiaries or (ii) as of May 6, 2001, for which, to
the Knowledge of the Company, the Company or any of its Subsidiaries has a
material obligation to indemnify any person.
(b) There is no injunction, order, judgment or decree imposed upon the
Company or, to the Knowledge of the Company, any of its Subsidiaries or the
assets of the Company or any of its Subsidiaries.
SECTION 3.12. Tax Matters. (a) The Company and each of its Subsidiaries
has duly filed all Tax returns and reports required to be filed by it, or
requests for extensions to file such returns or reports have been timely filed
and granted and have not expired, and such returns and reports are true, correct
and complete in all material respects. The Company and each of its Subsidiaries
have paid (or the Company has paid on their behalf) all Taxes that are shown as
due on such filed returns and have made provision in their financial statements
(in accordance with GAAP) for all Taxes for current periods for which the
Company or any of its Subsidiaries has not yet filed Tax returns.
(b) As used in this Agreement, the term "Taxes" includes all federal,
state, local and foreign income, franchise, property, sales, use, excise and
other taxes, including, without limitation, obligations for withholding Taxes
from payments due or made to any other person and any interest, penalties or
additions to tax.
SECTION 3.13. Employee Benefit Plans; ERISA. (a) Except as set forth in
Section 3.13(a) of the Company Disclosure Schedule, neither the Company nor any
of its Subsidiaries maintain or contribute to, or have any obligation to
contribute to, or have any liability, direct or indirect, contingent or
otherwise (including, without limitation, a liability arising out of an
indemnification, guarantee, hold harmless or similar agreement) with respect to,
any material employment, consulting, severance pay, termination pay, retirement,
deferred compensation, retention or change in control plan, program,
arrangement, agreement or commitment, or an executive compensation, incentive
bonus or other bonus, pension, stock option, restricted stock or equity-based,
profit sharing, savings, life, health, disability, accident, medical, insurance,
vacation, or other employee benefit plan, program, arrangement, agreement, fund
or commitment, including any "employee benefit plan" as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
providing benefits to any current or former employee, consultant or director of
the Company or any of its Subsidiaries or any current or former employee,
consultant or director of any entity with respect to which the Company or its
Subsidiaries is a successor (including, without limitation, (i) any written
promise or commitment, whether legally binding or not, to create any new or
modify any existing Company Benefit Plan that would reasonably be expected to
materially increase the benefits provided to any employee or former employee,
consultant or director of the Company or any Subsidiary thereof, and (ii) any
obligation to provide health, life insurance, or death benefits with respect to
current or former employees, consultants or directors of the Company or any of
its Subsidiaries beyond their termination of employment or service)
(collectively the
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"Company Benefit Plans"). True and complete copies of each Company Benefit Plan,
including, but not limited to, any trust instruments and/or insurance contracts,
if any, forming a part thereof, all amendments thereto and the most recent
determination letters issued by the Internal Revenue Service, all government and
regulatory approvals received from any foreign Regulatory Agency, the most
recent summary plan descriptions (including any material modifications) and the
most recent audited financial reports for any funded Company Benefit Plan have
been supplied or made available to Parent, including by way of documents filed
with the SEC.
(b) Except as set forth in Section 3.13(b) of the Company Disclosure
Schedule, with respect to each Company Benefit Plan that is not a multiemployer
plan (within the meaning of Section 3(2) of ERISA): (i) if intended to qualify
under Section 401(a), 401(k) or 403(a) of the Code such plan has received a
favorable determination letter from the Internal Revenue Service, and the
Company is not aware of any circumstances likely to result in revocation of such
favorable determination or such qualification; (ii) it has been operated and
administered in all material respects in compliance with its terms and all
applicable laws and regulations (including but not limited to ERISA, the Code
and any relevant foreign laws and regulations); (iii) there are no material
pending or, to the Knowledge of the Company, threatened claims against, by or on
behalf of any Company Benefit Plans (other than routine claims for benefits);
and (iv) all contributions, premiums and expenses to or in respect of such
Company Benefit Plan have been timely paid in full or, to the extent not yet
due, have been accrued on the Company's consolidated financial statements,
except for any failures to make or accrue such contributions, premiums and
expenses that, individually or in the aggregate, would not reasonably be
expected to result in any material liability to the Company.
(c) With respect to each Company Benefit Plan, neither the Company nor any
of its Subsidiaries has incurred or reasonably expects to incur, either directly
or by reason of their affiliation with any "ERISA Affiliate" (defined as any
organization which is a member of a controlled group of organizations with the
Company within the meaning of Sections 414(b), (c), (m) or (o) of the Code), any
material liability under Title IV of ERISA, and neither the Company nor any of
its Subsidiaries has incurred or reasonably expects to incur, either directly or
by reason of their affiliation with any ERISA Affiliate, any material liability
under Sections 412 or 4971 of the Code.
(d) With respect to each "employee pension benefit plan" (within the
meaning of Section 3(2) of ERISA), no such plan is a "multiemployer plan"
(within the meaning of Section 3(37) of ERISA) or a "multiple employer plan"
(within the meaning of Section 413(c) of the Code).
(e) Except as set forth in Section 3.13(e) of the Company Disclosure
Schedule, the consummation of the transactions contemplated hereby, either alone
or in combination with another event (whether contingent or otherwise), will not
(i) entitle any current or former employee, consultant or director of the
Company or any Subsidiary or any group of such employees, consultants or
directors to any payment; (ii) increase the amount of compensation due to any
such employee, consultant or director; (iii) accelerate the vesting or funding
of any compensation, stock incentive or other benefit; or (iv) be reasonably
expected to result in the payment of any "parachute payment" under Section 280G
of the Code (whether or not such payment is considered to be reasonable
compensation for services rendered), except for any such parachute payments that
are not reasonably expected to result in any material liability to the Company
or in a loss of a material deduction in respect of such payments.
(f) Except as set forth in Section 3.13(f) of the Company Disclosure
Schedule, to the Knowledge of the Company, no Company Benefit Plan, or Company
or any Subsidiary, is under audit or is the subject of an audit or investigation
by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation (the "PBGC") or any other federal or state governmental agency, nor
is any such audit or investigation pending or threatened.
(g) Except as set forth in Section 3.13(g) of the Company Disclosure
Schedule, neither the Company nor any Subsidiary maintains any plan, program or
arrangement or is a party to any contract that provides any benefits or provides
for payments to any person in, based on or measured by the value of, any equity
security of, or interest in, the Company or any Subsidiary.
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SECTION 3.14. SEC Reports. No final registration statement, prospectus,
report, schedule or definitive proxy statement filed since January 1, 1999 by
the Company or any of its Subsidiaries with the SEC pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), or the Exchange Act (the
"Company Reports"), or communication mailed by the Company to its stockholders
since January 1, 1999, as of the date of filing or mailing, as the case may be,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading, except that information as of a later date (but filed before the
date hereof) shall be deemed to modify information as of an earlier date. As of
their respective dates, all Company Reports complied in all material respects
with the published rules and regulations of the SEC with respect thereto.
SECTION 3.15. Licenses; Compliance with Applicable Law. The Company and
each of its Subsidiaries hold all licenses, franchises, permits and
authorizations which are material to the lawful conduct of their respective
businesses under and pursuant to all, and have complied with and are not in
material default under any, applicable law, statute, order, rule, regulation,
policy and/or guideline of any Governmental Entity relating to the Company or
any of its Subsidiaries, and, except as disclosed in the Company Reports filed
prior to the date of this Agreement, neither the Company nor any of its
Subsidiaries has Knowledge of, or has received notice of, any violations of any
of the above.
SECTION 3.16. Certain Contracts. Except as set forth in Section 3.16 of
the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries
is a party to or bound by any Contract (a) as of the date hereof, with respect
to the employment, termination or compensation of any directors, executive
officers, key employees or material consultants (other than oral contracts of
employment at will which may be terminated without penalty and other than those
contracts which do not and, insofar as reasonably can be expected, in the future
will not, have a Material Adverse Effect with respect to the Company), (b) which
is a "material contract" (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC) that has not been filed with or incorporated by
reference in the Company Reports or (c) which contains any material non-compete
or exclusivity provisions with respect to any business or geographic area in
which the Company or any of its affiliates conducts business or which restricts
the conduct of any business by the Company or any of its affiliates in any
geographic area or requires exclusive referrals of any business. The Company has
previously made available to Parent true and correct copies of all employment,
termination and compensation agreements (including deferred compensation) with
executive officers, key employees or material consultants which are in writing
and to which the Company or any of its Subsidiaries is a party. Each contract,
arrangement, commitment or understanding of the type described in this Section
3.16, whether or not set forth in Section 3.16 of the Company Disclosure
Schedule, is referred to herein as a "Company Contract", and neither the Company
nor any of its Subsidiaries has Knowledge of, or has received notice of, any
violation of any Company Contract by any of the other parties thereto.
SECTION 3.17. Agreements with Regulatory Agencies. Except as set forth in
Section 3.17 of the Company Disclosure Schedule, neither the Company nor any of
its Subsidiaries is subject to any cease-and-desist order issued by, or is a
party to any written agreement, consent agreement or memorandum of understanding
with, or is a party to any commitment letter or similar undertaking to, or is
subject to any order or directive by, or is a recipient of any extraordinary
supervisory letter from or has adopted any board resolutions at the request of,
any Regulatory Agency or other Governmental Entity, that materially restricts
the conduct of its business or that in any manner relates to its capital
adequacy, its credit policies, its management or its business (each, whether or
not set forth in the Company Disclosure Schedule, a "Company Regulatory
Agreement"), nor has the Company or any of its Subsidiaries been advised since
January 1, 1999 by any Regulatory Agency or other Governmental Entity that it is
considering issuing or requesting any such Company Regulatory Agreement.
SECTION 3.18. Undisclosed Liabilities. Except for those liabilities that
are fully reflected or reserved against in the financial statements included in
the Company's Annual Report on Form 10-K for the year ended December 31, 2000 or
in the unaudited financial statements referred to in clause (c) of Section 3.06,
liabilities identified in Section 3.18 of the Company Disclosure Schedule and
liabilities incurred in the ordinary course of business consistent with past
practice since December 31, 2000, neither the Company nor
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any of its Subsidiaries has incurred any liability of any nature required by
GAAP to be reflected in a balance sheet prepared in accordance with GAAP.
SECTION 3.19. Environmental Matters. Except as set forth in Section 3.19
of the Company Disclosure Schedule or in the Company Reports filed prior to the
date of this Agreement, there are no legal, administrative, arbitral or other
proceedings, claims, actions, causes of action, private environmental
investigations or remediation activities or governmental investigations of any
nature seeking to impose, or that are reasonably likely to result in the
imposition, on the Company or any of its Subsidiaries of any liability or
obligation arising under common law standards relating to environmental
protections, human health or safety, or under any local, state or federal
environmental statute, regulation or ordinance, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (collectively, the "Environmental Laws"), pending or, to the
Knowledge of the Company, threatened, against the Company or any of its
Subsidiaries. To the Knowledge of the Company, there is no reasonable basis for
any such proceeding, claim, action or governmental investigation that would
impose any liability or obligation. To the Knowledge of the Company, during or
prior to the period of (i) its or any of its Subsidiaries' ownership or
operation of any of their respective properties, (ii) its or any of its
Subsidiaries' participation in the management of any property, or (iii) its or
any of its Subsidiaries' holding of a security interest or other interest in any
property, there were no releases or threatened release of hazardous, toxic,
radioactive or dangerous materials or other materials regulated under
Environmental Laws in, on, under or affecting any such property. Neither the
Company nor any of its Subsidiaries is subject to any agreement, order,
judgment, decree, letter or memorandum by or with any Governmental Entity or
third party imposing any material liability or obligation pursuant to or under
any Environmental Law.
SECTION 3.20. Transactions with Affiliates. Except as disclosed in the
Company Reports filed prior to the date hereof, during the year ended December
31, 2000 there were no transactions, agreements or arrangements between the
Company or any of its Subsidiaries, on the one hand, and the Company's
affiliates (other than Subsidiaries of the Company and Parent or persons that
are also Subsidiaries or affiliates of Parent) or other persons, on the other
hand, that would be required to be disclosed under Item 404 of Regulation S-K
under the Securities Act. Since January 1, 2001 through the date hereof, there
have been no such transactions, agreements or arrangements except in amounts and
of types consistent with those that occurred during 2000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Except as disclosed in the Parent Disclosure Schedule, Parent represents
and warrants to the Company that:
SECTION 4.01. Corporate Organization. Parent is a societe anonyme or
limited liability banking corporation duly organized and validly existing under
the laws of the Republic of France. Merger Sub is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and all of the outstanding Merger Sub Units are owned
directly or indirectly by Parent. Merger Sub has been formed solely for the
purpose of engaging in the transactions contemplated hereby, will conduct its
operations only as contemplated hereby and will engage in no other business
activities other than activities conducted in furtherance of the transactions
contemplated hereby; provided, however, that Merger Sub may incur indebtedness
that does not contravene any other provision hereof, including Section 4.04.
Parent has the requisite power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business (to the extent the concept of
"qualification to do business" exists) in each jurisdiction in which the nature
of the business conducted by it or the character or location of the properties
and assets owned or leased by it makes such licensing or qualification
necessary. Merger Sub has the limited liability company power and authority to
own or lease all of its properties and assets and to carry on its business as it
is now being conducted, and is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it or the
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character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary.
SECTION 4.02. Authority; No Violation. (a) Parent has full corporate power
and authority to execute and deliver this Agreement and to consummate the Merger
and the other transactions contemplated hereby. Merger Sub has full limited
liability company power and authority to enter into and deliver this Agreement
and to consummate the Merger and the other transactions contemplated hereby.
(b) The consummation of the Merger and the other transactions contemplated
hereby has been duly and validly approved by a duly authorized committee of the
Board of Directors of Parent, and by the holder of all of the outstanding Merger
Sub Units. No other corporate proceedings on the part of Parent and no vote of
Parent's stockholders are necessary to consummate the transactions contemplated
hereby.
(c) The execution and delivery of this Agreement by Parent and Merger Sub
has been duly and validly authorized in accordance with applicable law and duly
and validly approved by all necessary action and no other proceedings on the
part of Parent or Merger Sub are necessary to approve this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Parent and Merger Sub and (assuming due
authorization, execution and delivery by the Company) constitutes a valid and
binding obligation of Parent and Merger Sub, enforceable against Parent and
Merger Sub in accordance with its terms.
(d) Neither the execution and delivery of this Agreement by Parent or
Merger Sub, nor the consummation by Parent or Merger Sub of the Merger, nor
compliance by Parent or Merger Sub with any of the terms or provisions hereof,
will (i) violate any applicable law or the memorandum and articles of
association, certificate of incorporation, bylaws or other organizational
documents of Parent or Merger Sub, as applicable, or (ii) assuming that the
consents and approvals and waiting periods referred to in Section 4.03 are duly
obtained or satisfied, violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to Parent, Merger Sub or
any of their respective Subsidiaries or any of their respective properties or
assets, or violate, conflict with, result in a breach of any provision of or the
loss of any benefit under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any Lien (or have any of
such results upon notice, or lapse of time or both) upon any of the respective
properties or assets of Parent, Merger Sub or any of their respective
Subsidiaries under, any of the terms, conditions or provisions of any Contract
to which Parent, Merger Sub or any of their respective Subsidiaries is a party,
or by which they or any of their respective properties or assets may be bound or
affected.
SECTION 4.03. Consents and Approvals. Except for (a) the requisite filings
with, notices to and approval of the Federal Reserve Board under the BHCA, (b)
the filing of any required applications or notices with the California State
Banking Department and Oregon, Washington, Idaho, Nevada, New Mexico and Hawaii
banking authorities, (c) the filing with the SEC of the Proxy Statement in
definitive form, (d) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware pursuant to the DGCL and the DLLCA, (e) any
consents, authorizations, approvals, filings or exemptions in connection with
compliance with the applicable provisions of supranational, federal, state,
local and foreign laws (including, without limitation, securities and insurance
laws) relating to the regulation of broker-dealers, investment advisers and
insurance agencies and any applicable SRO, and the rules of the NYSE and the
ParisBourse(SBF) S.A., (f) the Company Stockholder Approval, (g) the expiration
of any applicable waiting period under the HSR Act or any consents,
authorizations, approvals, filings or exemptions required by any other
applicable antitrust law or merger regulation, (h) such additional consents and
approvals set forth in Section 4.03 of the Parent Disclosure Schedule, and (i)
consents, authorizations, approvals, filings and registrations the failure of
which to obtain or make would not be reasonably likely to result, individually
or in the aggregate, in a Material Adverse Effect with respect to Parent, no
consents, authorizations or approvals of or filings or registrations with any
Governmental Entity or, of or with any other person by or on behalf of Parent or
Merger Sub, are necessary in connection with the execution and delivery by
Parent and Merger Sub of this Agreement and the consummation by Parent and
Merger Sub of the Merger.
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SECTION 4.04. Financing. Parent has or has access to, and will make
available to Merger Sub on or prior to the Closing Date, all the funds necessary
to perform its obligations under this Agreement, including consummating the
transactions contemplated by this Agreement on the terms contemplated hereby and
paying of all of its fees and expenses relating to such transactions.
SECTION 4.05. Litigation; Regulatory Action. (a) No litigation, claim or
other proceeding before any court or governmental agency is pending against
Parent or, to its Knowledge, any of its Subsidiaries and, to its Knowledge, no
such litigation, claim or other proceeding has been threatened, in each case
that would or would reasonably be expected to have a Material Adverse Effect on
Parent.
(b) Neither Parent nor, to its Knowledge, any of its Subsidiaries or
properties, is a party to or is subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter
of similar submission to, or extraordinary supervisory letter from or has
adopted any board resolutions at the request of, any Regulatory Agency or other
Governmental Entity (each a "Parent Regulatory Agreement").
(c) Neither Parent nor, to its Knowledge, any of its Subsidiaries, has been
advised by any Regulatory Agency that such Regulatory Agency or any other
Governmental Agency is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any such Parent Regulatory
Agreement.
SECTION 4.06. Absence of Certain Changes. Except as disclosed in writing
to the Company prior to the date hereof, since December 31, 2000, (i) Parent and
its Subsidiaries have carried on their respective businesses in the ordinary and
usual course consistent with past practice and (ii) no event has occurred and no
fact or circumstance has come to exist or come to be known which, directly or
indirectly, individually or taken together with all other facts, circumstances
and events (described in any paragraph of this Article IV or otherwise), has
had, or is reasonably expected to have a Material Adverse Effect with respect to
Parent.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01. Conduct of Business Prior to the Effective Time. During the
period from and including the date of this Agreement to the Effective Time,
except as expressly contemplated or permitted by this Agreement, the Company
shall, and shall cause its Subsidiaries to, (a) conduct their business only in
the usual, regular and ordinary course consistent with past practice, (b) use
commercially reasonable best efforts to maintain and preserve intact their
business organization, employees and advantageous business relationships and
retain the services of their key officers and key employees, (c) take no
intentional action which would adversely affect or delay in any material respect
the ability of Parent, Merger Sub or the Company to obtain any Requisite
Regulatory Approvals and (d) use commercially reasonable best efforts to obtain
any third party approvals that are necessary or appropriate for the Surviving
Corporation to conduct the business of the Company and its Subsidiaries as
currently conducted following the Effective Time.
SECTION 5.02. Forbearances of the Company. During the period from the date
of this Agreement to the Effective Time, except as set forth in Section 5.02 of
the Company Disclosure Schedule or except as expressly contemplated or permitted
by this Agreement, the Company shall not, and shall cause its Subsidiaries not
to, without the prior written consent of Parent (which, except in the case of
clause (b), shall not be unreasonably withheld or delayed):
(a) other than in the ordinary course of business consistent with past
practice, incur (i) any long-term indebtedness for borrowed money or
assume, guarantee, endorse or otherwise as an accommodation become
responsible for the long-term indebtedness of any other person (other than
deposits and similar liabilities, indebtedness of the Company's
Subsidiaries to the Company or any of its wholly owned Subsidiaries and
indebtedness under existing lines of credit and renewals or extensions
thereof), or (ii) any capital expenditures, obligations or liabilities;
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(b)(i) adjust, split, combine or reclassify any capital stock; (ii)
make, declare or pay any dividend (except (A) regular annual or quarterly
cash dividends (with record and payment dates consistent with past
practice) at a rate not in excess of $0.19 per Company Common Share per
quarter; (B) if the Effective Time is scheduled to occur on a date other
than a date the Board of Directors of the Company would normally establish
as a record date for a regular quarterly cash dividend, a dividend (1) with
a record date immediately prior to the Effective Time and (2) at a rate per
Company Common Share not in excess of the product (rounded to the nearest
$0.0001) of (x) the number of days that have or are scheduled to elapse
from (but excluding) the record date for the last regular quarterly
dividend paid by the Company to (but excluding) the date on which the
Effective Time occurs and (y) $0.00208219 (a "Pro Rata Dividend");
provided, that the Company shall consult with Parent to determine the
appropriate number of days to take into account in calculating any Pro Rata
Dividend; and (C) dividends paid in the ordinary course of business by any
wholly owned Subsidiary of the Company) or make any other distribution on,
or directly or indirectly redeem, purchase or otherwise acquire, any shares
of its capital stock or any securities or obligations convertible into or
exchangeable for any shares of its capital stock; (iii) grant any
additional Options or Restricted Shares or grant any person any right to
acquire any shares of its capital stock or any right the value of which is
based on the value of shares of its capital stock, (iv) issue any
additional shares of capital stock, other than with respect to the
exercise, conversion or settlement of Options or Restricted Shares granted
prior to the date hereof pursuant to the Company Stock Plans and issuances
by a wholly owned Subsidiary of the Company of its capital stock to the
Company; or (v) enter into any agreement, understanding or arrangement with
respect to the voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of
its material properties or assets, including, without limitation, capital
stock in any Significant Subsidiaries of the Company, to any person other
than a direct or indirect wholly owned Subsidiary, or cancel or release any
material indebtedness to any such person or any claims held by any such
person, except (i) internal reorganizations, liquidations or consolidations
involving existing Subsidiaries of the Company, (ii) subject to Section
6.02(c), as may be required by law to consummate the transactions
contemplated hereby, (iii) other activities in the ordinary course of
business consistent with past practice or (iv) pursuant to contracts or
agreements in force at the date of this Agreement;
(d) except for transactions in the ordinary course of business
consistent with past practice, make any material investment either by
purchase of stock or securities, contributions to capital, property
transfers, or purchase of any property or assets of any other individual,
corporation, limited partnership or other entity other than a wholly owned
Subsidiary; provided, however, that the foregoing shall not prohibit (A)
internal reorganizations, liquidations or consolidations involving existing
Subsidiaries or (B) foreclosures and other debt-previously-contracted
acquisitions in the ordinary course of business;
(e) except for transactions in the ordinary course of business
consistent with past practice, enter into or terminate any material lease,
contract or agreement, or make any material change in any of its material
leases, contracts or agreements, other than renewals of leases, contracts
or agreements without material changes of terms;
(f) other than in the ordinary course of business consistent with past
practice or as required by law or contracts in effect as of the date hereof
set forth in Section 3.13 or Section 5.02 of the Company Disclosure
Schedule, increase in any manner the wages, salaries, compensation, pension
or other fringe benefits or perquisites of any current or former employees,
consultants or directors of the Company or any of its Subsidiaries, or
vest, fund or pay any pension or retirement allowance other than as
required by any existing Company Benefit Plans disclosed in the Company
Disclosure Schedule to any such current or former employees, consultants or
directors or become a party to, amend or commit itself to any pension,
retirement, profit-sharing or welfare benefit plan or agreement or
employment, severance, consulting, retention, change in control,
termination, deferred compensation or incentive pay agreement with or for
the benefit of any current or former employee, consultant or director or,
except as expressly contemplated by this Agreement, accelerate the vesting,
funding or payment of any compensation payment or benefit
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(except pursuant to the mandatory terms of existing plans or agreements
disclosed on the Company Disclosure Schedule);
(g) settle any material claim, action or proceeding involving money
damages or waive or release any material rights or claims, except in the
ordinary course of business consistent with past practice;
(h) change its methods of accounting in effect at December 31, 2000,
except as required by changes in GAAP, or change any of its methods of
reporting material items of income and deductions for Tax purposes from
those employed in the preparation of the Tax returns of the Company for the
taxable years ending December 31, 2000 and 1999, except as required by
changes in law or regulation or as set forth in the Company Disclosure
Schedule;
(i) adopt or implement any amendment to its articles or certificate of
incorporation, articles of association, bylaws (or similar documents) or
any plan of consolidation, merger or reorganization other than in
accordance with the provisions of this Agreement;
(j) take any intentional action that is intended or may reasonably be
expected to result in any of the conditions to the Merger set forth in
Article VII not being satisfied, except, in every case, as may be required
by applicable law, regulation or safe and sound banking practices; or
(k) agree to, or make any commitment to, take any of the actions
prohibited by this Section 5.02.
SECTION 5.03. Covenants of Parent. During the period from and including
the date of this Agreement to the Effective Time, except as expressly
contemplated by this Agreement, Parent shall, and shall cause its Subsidiaries
to, (a) not take, or agree to, or make any commitment to take, any action,
without the prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed), that is intended or may reasonably be
expected to result in any of the conditions to the Merger set forth in Article
VII not being satisfied, except, in every case, as may be required by applicable
law, regulation or safe and sound banking practices, (b) take no intentional
action which would adversely affect or delay in any material respect, the
ability of Parent, Merger Sub or the Company to obtain any Requisite Regulatory
Approval and (c) use its reasonable best efforts to obtain any third party
approvals that are necessary or appropriate for the Surviving Corporation to
conduct the business of the Company and its Subsidiaries as currently conducted
following the Effective Time.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Stockholders' Meeting. (a) Subject to the provisions of
Section 6.04 and Section 8.01, the Company shall, consistent with applicable
law, call and hold a meeting of its stockholders (the "Company Meeting") as
promptly as practicable following the date hereof for the purpose of voting upon
the adoption of this Agreement. The Company, through its Board of Directors,
shall recommend to its stockholders adoption of this Agreement, which
recommendation shall be contained in the Proxy Statement (as defined below);
provided, however, that the Board of Directors of the Company (acting upon the
recommendation of the Special Committee) may withdraw, modify or change its
recommendation to the stockholders of the Company if the Board of Directors of
the Company (acting upon the recommendation of the Special Committee) determines
in good faith, following consultation with its outside counsel as to legal
matters, that failure to do so would be reasonably likely to constitute or
result in a breach of its fiduciary duties under applicable law. The Company
shall use reasonable best efforts to solicit from the holders of shares of
Company Common Stock proxies in favor of the adoption of this Agreement, and
shall take all other action reasonably necessary or advisable to secure the vote
or consent of such holders required by the DGCL unless the Board of Directors of
the Company (acting upon the recommendation of the Special Committee) has
withdrawn, modified or changed its recommendation in accordance with the
immediately preceding sentence.
(b) Parent shall, and shall cause its Subsidiaries, to vote (or consent
with respect to) any shares of Company Common Stock and Class A Common Stock
beneficially owned by it, or with respect to which it has the power (by
agreement, proxy or otherwise) to vote or cause to be voted (or to provide a
consent), in
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favor of the adoption of this Agreement at any meeting of the stockholders of
the Company at which this Agreement shall be submitted for adoption and at all
adjournments or postponements thereof (or, if applicable, by any action of the
stockholders of the Company by consent in lieu of a meeting); provided, however,
that nothing in this Agreement shall be deemed to require Parent or any of its
Subsidiaries to take any action inconsistent with its obligations in a fiduciary
or similar capacity with respect to Fiduciary Shares.
(c) The foregoing provisions of this Section 6.01 apply to the members of
the Board of Directors of the Company in their capacities as such and not in any
other capacity.
SECTION 6.02. Regulatory Matters. (a) Parent, Merger Sub and the Company
shall cooperate in preparing, and the Company shall, as soon as practicable,
file (after providing Parent and Merger Sub with a reasonable opportunity to
review and comment thereon) preliminary proxy materials (including, without
limitation, a Schedule 13E-3 filing, if required to be filed under the Exchange
Act) relating to the Company Meeting (together with any amendments thereof or
supplements thereto, the "Proxy Statement") with the SEC and shall use its
commercially reasonable efforts to respond to any comments of the SEC (after
providing Parent and Merger Sub with a reasonable opportunity to review and
comment thereon) and to cause the Proxy Statement to be mailed to the Company's
stockholders as promptly as practicable after responding to all such comments to
the satisfaction of the SEC staff. The Company shall notify Parent and Merger
Sub promptly of the receipt of any comments from the SEC and of any request by
the SEC for amendments or supplements to the Proxy Statement or for additional
information and shall supply Parent and Merger Sub with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC, on the other hand, with respect to the Proxy Statement or the
transactions contemplated hereby. The Company will cause the Proxy Statement
(other than portions relating to Parent or Merger Sub) to comply in all material
respects with the applicable provisions of the Exchange Act and the rules and
regulations thereunder applicable to the Proxy Statement and the solicitation of
proxies for the Company Meeting (including any requirement to amend or
supplement the Proxy Statement). Merger Sub and Parent shall cooperate with the
Company in the preparation of the Proxy Statement. Parent and Merger Sub will
cause those portions of the Proxy Statement relating to Parent and Merger Sub to
comply in all material respects with the applicable provisions of the Exchange
Act and the rules and regulations thereunder applicable to the Proxy Statement.
Without limiting the generality of the foregoing, each party shall furnish to
the other such information relating to it and its affiliates and the
transactions contemplated hereby and such further and supplemental information
as may be reasonably requested by the other party and shall promptly notify the
other party of any change in such information. Each of the Company, Parent and
Merger Sub agrees, as to itself and its Subsidiaries, that none of the
information supplied or to be supplied by it for inclusion or incorporation by
reference in the Proxy Statement and any amendment or supplement thereto will,
at the date of mailing to stockholders and at the time of the Company Meeting,
contain (i) any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any statement which, at the time and in the light
of the circumstances under which such statement is made, will be false or
misleading with respect to any material fact, or which will omit to state any
material fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier statement in the
Proxy Statement or any amendment or supplement thereto. If at any time prior to
the Company Meeting there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, the Company shall promptly
prepare and mail to its stockholders such an amendment or supplement; provided,
that no such amendment or supplement to the Proxy Statement will be made by the
Company without providing Parent and Merger Sub a reasonable opportunity to
review and comment thereon.
(b) Subject to Section 6.01(a) hereof and without limiting its rights under
Section 8.01(h) hereof, the Company shall include in the Proxy Statement the
recommendation of the Company's Board of Directors that the stockholders of the
Company adopt this Agreement.
(c) The parties hereto shall cooperate with each other and use their
commercially reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, to
obtain as promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental Entities which are
necessary or advisable to consummate the transactions
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contemplated hereby, and to comply fully with the terms and conditions of all
such permits, consents, approvals and authorizations of all such Governmental
Entities; provided that Parent and Merger Sub shall not be obligated to agree to
any Burdensome Condition (as defined below). Parent, the Company and Merger Sub
shall, to the extent practicable, consult each other on, in each case subject to
applicable laws relating to the exchange of information, all the information
relating to the Company, Merger Sub or Parent, as the case may be, and any of
their respective Subsidiaries, which appear in any filing made with, or written
materials submitted to, any third party or any Governmental Entity in connection
with the transactions contemplated hereby. In exercising the foregoing right,
each of the parties hereto shall act reasonably and as promptly as practicable.
The parties hereto agree that they will consult with each other with respect to
the obtaining of all permits, consents, approvals and authorizations of all
third parties and Governmental Entities necessary or advisable to consummate the
transactions contemplated hereby and each party will keep the other apprised of
the status of matters relating to completion of the transactions contemplated
hereby. For purposes of this Agreement, "Burdensome Condition" means any
conditions, restrictions or requirements which the Board of Directors of Parent
reasonably determines would, individually or in the aggregate, (a) reduce the
benefits of the Merger to such a degree that Parent would not have entered into
this Agreement had such conditions, restrictions or requirements been known at
the date hereof or (b) have, or would reasonably be expected to have, a material
and adverse effect on the Surviving Corporation following the Effective Time.
(d) Parent, Merger Sub and the Company shall, upon request, furnish each
other with all information concerning themselves, their Subsidiaries, directors,
officers and stockholders and such other matters as may be reasonably necessary
or advisable in connection with any statement, filing, notice or application
made by or on behalf of Parent, Merger Sub, the Company or any of their
respective Subsidiaries to any Governmental Entity in connection with the Merger
and the other transactions contemplated hereby.
SECTION 6.03. Access to Information; Confidentiality. (a) From the date
hereof to the Effective Time, the Company shall (and shall cause each of its
Subsidiaries to) provide to Parent and Merger Sub (and their respective
officers, directors, employees, accountants, consultants, legal counsel, agents
and other representatives, collectively, "Representatives") (i) reasonable
access, during normal business hours and in a manner so as to not unduly
interfere with the Company's business, to all properties, offices and other
facilities, information, books, records and documents which Parent or Merger Sub
may reasonably request regarding the business, properties, contracts, assets,
liabilities, employees and other aspects of the Company or its Subsidiaries and
(ii) reasonable access at reasonable times upon prior notice to the officers,
employees and agents of the Company and its Subsidiaries.
(b) Notwithstanding any other provision in this Agreement, the Company and
its Subsidiaries shall not be required to provide access to or disclose
information where such access or disclosure would violate or prejudice the
rights of its customers, jeopardize the attorney-client privilege of the entity
in control or possession of such information or contravene any law, rule,
regulation, order, judgment or decree, or any binding agreement entered into
prior to the date of this Agreement. In any such event the parties will make
appropriate substitute disclosure arrangements to the extent possible in the
circumstances.
(c) No investigation by any party, whether prior to the execution of this
Agreement or pursuant to this Section 6.03, shall affect any representation or
warranty in this Agreement of any party hereto or any condition to the
obligations of the parties hereto.
(d) For a period of two years from the date hereof, Parent shall, and shall
cause its Subsidiaries and its and their respective Representatives, to keep
confidential any and all Confidential Information furnished by or on behalf of
the Company or any of its Subsidiaries pursuant to this Agreement. "Confidential
Information" means any information furnished pursuant to this Agreement,
regardless of the form in which such information is communicated or maintained,
and all notes, reports, analyses, compilations, studies, files or other
documents or material, whether prepared by the Company, Parent, Merger Sub or
others, which are based on, contain or otherwise reflect such information;
provided, that "Confidential Information" does not include information that (i)
is or becomes available to the public, other than as a result of a disclosure in
breach of this Section 6.03, (ii) was available, or has become available, to
Parent, Merger Sub or any of their respective Representatives, on a
non-confidential basis from a source other than the Company or its
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Representatives; provided, that such source was not, to the Knowledge of Parent
or Merger Sub or such Representatives, prohibited from disclosing such
information by a legal, contractual or fiduciary obligation owed to the Company,
or (iii) Parent or Merger Sub or any of their respective Representatives
independently developed without reference to Confidential Information.
(e) Notwithstanding anything in this Agreement to the contrary, in the
event that any party to this Agreement is legally required pursuant to
applicable law or regulation or regulatory, legal or judicial process (including
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process), to disclose Confidential Information,
such party will provide the other parties with prompt notice of such event so
that the other parties may seek a protective order or other appropriate remedy
or waive compliance with Section 6.03(d). In the event any party determines to
seek such protective order or other remedy, the other parties will cooperate
with such party in seeking such protective order or other remedy. In the event
that such protective order or other remedy is not obtained and disclosure of
Confidential Information is required, or a party grants a waiver hereunder,
Parent or Merger Sub, or any of their respective Representatives, as the case
may be, (i) may, without liability hereunder furnish that portion (and only that
portion) of the Confidential Information which it is legally required to
disclose and (ii) will exercise its commercially reasonable best efforts to have
confidential treatment accorded any Confidential Information so furnished.
SECTION 6.04. Other Offers. The Company and its Subsidiaries will not,
directly or indirectly, and will use their reasonable best efforts to cause
their Representatives not to (a) take any action to solicit, initiate or
knowingly encourage any Acquisition Proposal (as defined below) or (b) engage in
negotiations with, or disclose any nonpublic information relating to the Company
or any of its Subsidiaries or afford access to the properties, books or records
of the Company or any of its Subsidiaries to, any person that may, to the
Company's Knowledge, be considering making, or has made, an Acquisition
Proposal; provided that the Company may, in response to an unsolicited bona fide
written proposal from a third party regarding an Acquisition Proposal, engage in
the activities specified in clause (b) of this Section 6.04, if (i) following
consultation with outside counsel, the Board of Directors of the Company (acting
upon the recommendation of the Special Committee) determines in good faith that
failure to do so would be reasonably likely to constitute or result in a breach
of its fiduciary duties under applicable law, (ii) following consultation with
the Special Committee Financial Advisor, the Board of Directors of the Company
(acting upon the recommendation of the Special Committee) determines in good
faith that such Acquisition Proposal constitutes or has a reasonable likelihood
of resulting in a Superior Proposal, and (iii) the Company has received from
such third party an executed confidentiality agreement with terms not materially
less favorable to the Company than those contained in Section 6.03. The Company
will as promptly as practicable (and in no event later than one business day
after the relevant event) notify Parent in writing (which notice shall identify
the person making the Acquisition Proposal or request for information and set
forth the material terms thereof) after having received any Acquisition
Proposal, or request for nonpublic information relating to the Company or any of
its Subsidiaries or for access to the properties, books or records of the
Company or any of its Subsidiaries by any person who is, to the Company's
Knowledge, considering making or has made an Acquisition Proposal. The Company
will keep Parent currently informed of the status and material developments and
terms of any such Acquisition Proposal or request and any related material
discussions or negotiations. The Company and its Subsidiaries shall, and shall
use their reasonable best efforts to cause their respective Representatives to,
cease immediately and cause to be terminated all activities, discussions or
negotiations, if any, with any persons conducted heretofore with respect to any
Acquisition Proposal. Nothing in this Section 6.04 shall prohibit the Company,
its Board of Directors or the Special Committee from taking and disclosing to
the stockholders of the Company a position with respect to an Acquisition
Proposal by a third party to the extent required under the Exchange Act or from
making such disclosure to the stockholders of the Company which, after
consultation with outside counsel of the Company, the Special Committee (or the
Board of Directors of the Company acting upon the recommendation of the Special
Committee) determines is required under applicable law; provided that nothing in
this sentence shall affect the obligations of the Company, its Board of
Directors or the Special Committee under any other provision of this Agreement.
For purposes of this Agreement, "Acquisition Proposal" means any offer or
proposal (other than an offer or proposal by or on behalf of Parent or its
affiliates) for, or any indication of interest in (w) a merger or consolidation,
or any
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similar transaction, involving the Company or any Significant Subsidiary of the
Company, (x) a purchase, lease or other acquisition or assumption of all or
substantially all of the assets of the Company or all or substantially all of
the assets or deposits of any Significant Subsidiary of the Company, (y) a
purchase or other acquisition (including by way of merger, consolidation, share
exchange, tender offer or otherwise) of beneficial ownership (the term
"beneficial ownership" for purposes of this Agreement having the meaning
assigned thereto in Section 13(d) of the Exchange Act, and the rules and
regulations thereunder) of securities representing 25% or more of the voting
power of the Company or 25% or more of the voting power of any Significant
Subsidiary of the Company, or (z) any substantially similar transaction.
SECTION 6.05. Indemnification and Insurance. (a) The Surviving Corporation
shall, for six years from and after the Effective Time, maintain in effect the
indemnification, expense advancement and exculpation obligations set forth in
the Company's or any Subsidiary's Certificate of Incorporation and the Company's
By-Laws, as amended, or other organizational documents, in each case as of the
date of this Agreement as continuing obligations of the Surviving Corporation
and such provisions shall not be amended, repealed or otherwise modified during
such period in any manner that would adversely affect the rights thereunder of
the individuals who on or at any time prior to the Effective Time were entitled
to rights thereunder with respect to matters occurring prior to the Effective
Time. In addition, Merger Sub and the Company agree that the indemnification and
advancement obligations of the Company or any Subsidiary as set forth in
indemnification agreements to which it is a party shall be continuing
obligations of the Surviving Corporation or such Subsidiary, as applicable, and
shall not be amended, repealed or otherwise modified after the Effective Time,
except as permitted by the terms and provisions of those agreements.
(b) The Surviving Corporation and the Company shall maintain in effect, for
six years from and after the Effective Time, directors' and officers' liability
insurance policies covering the persons who are currently covered in their
capacities as directors and officers (the "Covered Parties") by the Company's
current directors' and officers' policies and on terms not materially less
favorable than the existing insurance coverage with respect to matters occurring
at or prior to the Effective Time; provided, however, in the event the annual
premium for such coverage exceeds an amount equal to 225% of the last annual
premium paid immediately prior to the date hereof by the Company for such
coverage, the Surviving Corporation shall obtain as much comparable insurance as
possible for an annual premium equal to 225% of the last annual premium paid
immediately prior to the date hereof by the Company. The provisions of the
immediately preceding sentence shall be deemed to have been satisfied if prepaid
policies have been obtained by the Company prior to the Closing for purposes of
this Section 6.05, which policies provide such directors and officers with
coverage for an aggregate period of six years with respect to claims arising
from facts or events that occurred on or before the Effective Time, including,
without limitation, in respect of the transactions contemplated by this
Agreement; provided, that the Company shall not purchase any such policies if
the cost thereof would exceed the amount specified in the preceding sentence and
shall consult with Parent prior to purchasing any such policy in order to
determine the most cost-effective and efficient means of obtaining such
coverage. If such prepaid policies have been obtained by the Company prior to
the Closing, Parent shall and shall cause the Surviving Corporation to maintain
such policies in full force and effect, and continue to honor the Company's
obligations thereunder. If the Surviving Corporation or any of its successors
and assigns (i) consolidates with or merges with or into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers or conveys all or substantially all of
its properties and assets to any person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of the Surviving Corporation assume the obligations set forth in this
Section 6.05.
(c) In addition to, and not in lieu of the foregoing, Merger Sub agrees
that Surviving Corporation shall indemnify, defend (with mutually acceptable
counsel) and hold harmless all current and former officers and directors of the
Company and its Subsidiaries (the "Indemnified Parties") to the fullest extent
permitted by the DGCL, as amended from time to time, from and against all
liabilities (including amounts paid in settlement; provided the Surviving
Corporation has approved such settlement), costs, expenses and claims (including
without limitation reasonable legal fees and disbursements, which shall be paid,
reimbursed or advanced by the Surviving Corporation in advance of the final
disposition thereof arising out of actions taken prior to the Effective Time in
performance of their duties as directors or officers of the Company or any
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Subsidiary; provided, however, that the Surviving Corporation's obligations to
the Indemnified Parties under this Section 6.05(c) shall not be effective until
consummation of the Merger.
(d) In the event that any action, suit, proceeding or investigation
relating thereto or to the transactions contemplated by this Agreement is
commenced, whether before or after the Effective Time, the parties hereto agree
to cooperate and use their respective reasonable efforts to vigorously defend
against and respond thereto.
(e) Following the Effective Time Parent shall cause Merger Sub and the
Surviving Corporation to perform their obligations under this Section 6.05.
SECTION 6.06. Notification of Certain Matters. From and after the date of
this Agreement until the Effective Time, each party hereto shall promptly notify
the other parties hereto of:
(a) any change or event, or series of changes or events, having, or
which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on it or would be reasonably likely to
cause any of the conditions in Article VII not to be satisfied or to cause
the satisfaction thereof to be materially delayed;
(b) the receipt of any material notice or other material communication
from any person alleging that the consent of such person is or may be
required in connection with the transactions contemplated hereby;
(c) the receipt of any material notice or other material communication
from any Governmental Entity in connection with the transactions
contemplated hereby; and
(d) any actions, suits, claims, investigations or proceedings
commenced or, to the Knowledge of the party, threatened against Parent,
Merger Sub or the Company which seeks to prohibit or prevent consummation
of the transactions contemplated hereby;
in each case, to the extent such event or circumstance is or becomes known to
the party required to give such notice; provided, however, that the delivery of
any notice pursuant to this Section 6.06 shall not be deemed to be an amendment
of this Agreement or any Section in the Company Disclosure Schedule or the
Parent Disclosure Schedule, as the case may be, and shall not cure any breach of
any representation or warranty requiring disclosure of such matter prior to the
date of this Agreement.
SECTION 6.07. Public Announcements. Parent, Merger Sub and the Company
shall use their reasonable best efforts to consult with each other before
issuing any press release or otherwise making any public statements with respect
to this Agreement or any of the transactions contemplated hereby. Prior to the
Closing, Parent, Merger Sub and the Company shall not issue any such press
release or make any such public statement without the prior consent of the other
parties (which consent shall not be unreasonably withheld or delayed), except as
may be required by law or regulation or any listing agreement with the NYSE or
any national or non-U.S. securities exchange to which Parent or the Company is a
party and, in such case, shall use their reasonable best efforts to consult with
all the parties hereto prior to such release or statement being issued. The
parties shall agree on the text of a joint press release by which Parent, Merger
Sub and the Company will announce the execution of this Agreement.
SECTION 6.08. Exchange Act and NYSE Filings. Unless an exemption shall be
expressly applicable, or unless Parent, Merger Sub or the Company, as the case
may be, agrees otherwise in writing, Parent, Merger Sub and the Company and
their respective affiliates will timely file with the SEC and the NYSE all
reports required to be filed pursuant to the rules and regulations of the SEC
and NYSE (including, without limitation, all required financial statements).
Such reports and other information shall comply in all material respects with
all of the requirements of the SEC and NYSE rules and regulations, and when
filed, will not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 6.09. Reasonable Best Efforts. Subject to the terms and conditions
hereof, each of the Parent, Merger Sub and the Company will use their reasonable
best efforts to take all action necessary and to
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do all things necessary, proper or desirable, or advisable under applicable
laws, so as to permit the consummation of the Merger as promptly as practicable
and otherwise to enable the consummation of the transactions contemplated
hereby.
SECTION 6.10. Performance by Merger Sub. Parent shall cause Merger Sub to
perform its obligations hereunder.
SECTION 6.11. Takeover Statutes. The Company will take all steps necessary
to exempt (or continue the exemption of) the Merger, this Agreement and the
transactions contemplated hereby from, or if necessary challenge the validity or
applicability of, any applicable "moratorium", "control share", "fair price" or
other anti-takeover laws and regulations of any state or, upon the reasonable
request of Parent, any non-U.S. jurisdiction, as now or hereafter in effect.
SECTION 6.12. Standstill Agreement. Notwithstanding Section 2.2 of the
Standstill Agreement, Parent or any of its Subsidiaries may take any and all
action necessary or, in the reasonable judgment of Parent (subject to the prior
approval of the Company, which shall not be unreasonably withheld or delayed),
desirable in order to fulfill any and all express obligations and rights under
this Agreement, including, without limitation, pursuant to Section 6.01(b) and
Section 8.01(h) hereof and to make public announcements or solicit proxies in
response to any Acquisition Proposal made to the Company. The Standstill
Agreement shall terminate automatically at the Effective Time. Except as
provided in this Section 6.12, nothing in this Agreement shall be deemed to be a
waiver, modification or amendment of the Standstill Agreement or any provision
of the Company's Certificate of Incorporation or By-Laws.
SECTION 6.13. Employee Benefits. (a) From and after the Effective Time,
Parent shall, or shall cause the Surviving Corporation to, recognize prior
actual and credited service recognized under the plans of the Company or any of
its Subsidiaries of each employee of the Company or any of its Subsidiaries as
of the Effective Time (the "Company Employees") as service under the employee
benefit plans of Parent or its Subsidiaries for all purposes (other than for
purposes of benefit accruals) in which such Company Employee is eligible to
participate following the Effective Time, it being intended that such credits of
service shall not result in duplication of benefits under such plans.
(b) Parent shall maintain, or shall cause the Surviving Corporation to
maintain, employee benefit plans, programs, policies and arrangements for
Company Employees which provide benefits that are no less favorable in the
aggregate to those provided under the applicable employee benefit plans (as
defined in Section 3(3) of ERISA (excluding plans exempt under Section 201(2) of
ERISA)) of the Company and its Subsidiaries generally available to Company
Employees in effect immediately prior to the Effective Time until the earlier of
(i) two years after the Effective Time and (ii) the time that Parent or its
Subsidiaries makes available to such Company Employees employee benefit plans,
programs, policies and arrangements that are no less favorable in the aggregate
than are provided to similarly situated employees of Parent or its Subsidiaries
in the applicable jurisdiction. Any such plans, programs, policies and
arrangements, and any awards thereunder to the extent not paid in connection
with the Merger, that currently provide for benefits based on performance
targets, including without limitation the Long-Term Incentive Plan and the
Incentive Plan for Key Executives, shall be amended by Parent in consultation
with the Chairman and Chief Executive Officer of the Company as soon as
practicable following the Effective Time to reflect new and reasonable
performance targets. Notwithstanding the provisions of this Section 6.13(b),
neither Parent nor the Surviving Corporation shall be required to maintain any
such employee benefit plan, program, policy or arrangement if adjustment to such
plan, program, policy or arrangement would be necessary or desirable under the
Code or any similar law.
(c) From and after the Effective Time, Parent shall, or shall cause the
Surviving Corporation to, (i) give credit for all current year deductibles,
co-payments and annual out-of-pocket limits paid or incurred by any Company
Employee in respect of claims incurred by such Company Employee during the
portion of the current calendar year prior to the Effective Time, and (ii) waive
any pre-existing conditions provisions under any group health plans of Parent or
its Subsidiaries covering the Company Employees and their eligible dependents to
the same extent that such provisions were waived with respect to such Company
Employees and their eligible dependents pursuant to the terms of the group
health plans of the Company immediately prior to
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the Effective Time (the "Company Group Health Plans") and to the extent that
such Company Employees and their eligible dependents were covered under the
Company Group Health Plans.
(d) Parent intends to provide, after the Closing, (i) an opportunity for
senior executives of the Surviving Corporation to participate in a Parent stock
option program as may be in effect at such time, at the same level as similarly
situated employees of Parent participate and (ii) an opportunity for other
salaried employees (not including such senior executives) of the Surviving
Corporation to participate in a Parent discounted stock purchase program as may
be in effect at such time (together with such stock option program, "Parent
Equity Programs"); provided that, in each case, any awards granted under the
Parent Equity Programs will be subject to a determination by Parent that such
awards will not subject Parent or any of its Subsidiaries to additional or
different SEC reporting requirements than the requirements to which Parent or
any of its Subsidiaries are currently subject, including, without limitation, a
requirement that Parent reconcile its financial statements in accordance with
GAAP. Awards granted under the Parent Equity Programs will be determined by
Parent in consultation with the Chief Executive Officer of the Surviving
Corporation.
(e) As of the Effective Time, Parent shall cause the Surviving Corporation
to expressly assume the BancWest Corporation Deferred Compensation Plan (in
accordance with Section 4.4 of such plan), the BancWest Corporation Excess
Benefit Plan (in accordance with Section 6.4 of such plan), the Supplemental
Cooke Trust Plan (in accordance with Section 5.4 of such plan) and the BancWest
Supplemental Executive Retirement Plan (in accordance with Section 4.3 of such
plan) and all obligations and liabilities thereunder, in accordance with the
terms of such plans.
(f) At the Effective Time, the maximum target value attainable under all
outstanding Awards (as defined in the BancWest Corporation Long Term Incentive
Plan (the "Long Term Incentive Plan")) outstanding less than six months shall be
deemed to have been fully earned, and all such Awards shall be paid as soon as
practicable after the Effective Time to the holders of such Awards (reduced by
all applicable withholding taxes and other similar charges). All other
outstanding Awards shall be paid in accordance with the Long Term Incentive Plan
as soon as practicable after the Effective Time.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01. Conditions to Each Party's Obligation To Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Stockholder Approval. This Agreement shall have been adopted by
the affirmative vote of (i) holders of a majority of the outstanding
Company Common Shares, in accordance with the DGCL and the Company's
Certificate of Incorporation and (ii) holders of Company Common Shares
constituting no less than two-thirds of the Company Common Shares
outstanding and entitled to vote at the Company Meeting.
(b) Other Approvals. All regulatory approvals and non-objections
required to consummate the Merger shall have been obtained, and all
statutory waiting periods shall have expired (including, if applicable, the
expiration or termination of any waiting period under the HSR Act or any
other applicable antitrust laws or merger regulations), other than
regulatory approvals or non-objections, or the expiration of waiting
periods the failure to be obtained or to expire which would not reasonably
be expected to have a material adverse effect on the consummation of the
Merger or on the Surviving Corporation following the Effective Time (such
approvals, non-objections and the expiration of all such waiting periods
being referred to herein as the "Requisite Regulatory Approvals"), and all
such Requisite Regulatory Approvals shall be in full force and effect.
(c) No Injunctions or Restraints; Illegality. No order, injunction or
decree issued by any court or agency of competent jurisdiction or other
legal restraint or prohibition (an "Injunction") preventing the
consummation of the Merger shall be in effect. No statute, rule,
regulation, order, injunction or decree
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shall have been enacted, entered, promulgated or enforced by any
Governmental Entity which prohibits or makes illegal the consummation of
the Merger or would constitute a Burdensome Condition.
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub. The
obligation of each of Parent and Merger Sub to consummate the Merger is also
subject to the satisfaction or waiver by Parent at or prior to the Effective
Time of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth
in Section 2.06(b), the representations and warranties of the Company set
forth in this Agreement shall be true and correct in all respects as of the
Closing Date (except to the extent such representations and warranties
expressly speak as of a specified earlier date, in which case such
representations and warranties shall be true as of such earlier date) as
though made on and as of the Closing Date; and Parent shall have received a
certificate signed on behalf of the Company by the chief executive officer
of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects each of the obligations required to be
performed by the Company under this Agreement on or prior to the Closing
Date and Parent shall have received a certificate signed on behalf of the
Company by the chief executive officer of the Company to such effect.
(c) Approvals. All third party approvals (other than the Requisite
Regulatory Approvals) that are necessary for the conduct, immediately
following the Effective Time, by the Surviving Corporation of the business
of the Company and its Subsidiaries, substantially as currently conducted
(except for any such approval the failure of which to obtain would not
result in a Material Adverse Effect on the Surviving Corporation) shall
have been obtained and shall remain in full force and effect.
(d) No Burdensome Condition. No Requisite Regulatory Approval shall
have imposed any Burdensome Condition.
SECTION 7.03. Conditions to Obligations of the Company. The obligation of
the Company to consummate the Merger is also subject to the satisfaction or
waiver by the Company at or prior to the Effective Time of the following
conditions:
(a) Representations and Warranties. Subject to the standard set forth
in Section 2.06(b), the representations and warranties of Parent and Merger
Sub set forth in this Agreement shall be true and correct, as of the
Closing Date (except to the extent such representations and warranties
speak as of a specified earlier date, in which case such representations
and warranties shall be true as of such earlier date) as though made on and
as of the Closing Date; and the Company shall have received a certificate
signed on behalf of each of Parent and Merger Sub by an executive officer
of Parent and Merger Sub, as the case may be, to such effect.
(b) Performance of Obligations of Parent. Each of Parent and Merger
Sub shall have performed in all material respects each of the obligations
required to be performed by it under this Agreement at or prior to the
Closing Date and the Company shall have received a certificate signed on
behalf of each of Parent and Merger Sub by an executive officer of Parent
and Merger Sub, as the case may be, to such effect.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time, notwithstanding any
requisite adoption of this Agreement by the stockholders of the Company:
(a) by mutual written consent of the Company (provided that such
termination has been approved by the Special Committee) and Parent;
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(b) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent if any Governmental Entity
which must grant or satisfy, as the case may be, a Requisite Regulatory
Approval has denied approval of the Merger and such denial has become final
and nonappealable, or any Governmental Entity of competent jurisdiction
shall have issued a final nonappealable injunction permanently enjoining or
otherwise prohibiting the consummation of the transactions contemplated by
this Agreement; provided, however, that the right to terminate this
Agreement under this Section 8.01(b) shall not be available to any party
whose failure to comply with Section 6.02(c) has been the primary cause of
such action;
(c) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent if the Merger shall not have
been consummated on or before January 30, 2002, unless the failure of the
Closing to occur by such date shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth herein;
(d) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent if there shall have been a
material breach of any of the covenants or agreements or any of the
representations or warranties set forth in this Agreement on the part of
the Company (in the case of Parent) or Parent or Merger Sub (in the case of
the Company), which breach is not cured, in the case of a breach of Section
6.04, within 5 days and, in all other cases, within 30 days following
written notice to the party committing such breach, or which breach, by its
nature or timing, cannot be cured prior to the date referred to in Section
8.01(c); provided that such breach, if occurring or continuing on the
Closing Date, would constitute, individually or in the aggregate with other
such breaches occurring prior to such time and then continuing, the failure
of the conditions set forth in Sections 7.02(a), 7.02(b), 7.03(a) or
7.03(b), as applicable;
(e) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent, if the Company Meeting shall
have been held and the holders of Company Common Shares shall have failed
to adopt this Agreement by the vote specified in Section 7.01(a) at such
meeting (including any adjournment or postponement thereof in accordance
with applicable law); provided, that Parent shall not have the right to
terminate this Agreement under this Section 8.01(e) if Parent has failed to
comply with Section 6.01(b);
(f) by Parent if the Special Committee or the Board of Directors of
the Company (by a vote or consent of a majority of the non-Class A
directors then in office) shall have (i) withdrawn or modified in a manner
adverse to Parent its favorable recommendation of this Agreement, or (ii)
recommended any Acquisition Proposal to the stockholders of the Company;
(g) by Parent if any Governmental Entity which must grant or satisfy,
as the case may be, a Requisite Regulatory Approval has granted such
approval subject to a Burdensome Condition, and such grant and related
Burdensome Condition have become final and nonappealable; and
(h) by the Company if the Board of Directors of the Company (acting
upon the recommendation of the Special Committee) shall concurrently with
such termination authorize the Company to enter into an agreement with
respect to an Acquisition Proposal; provided, however, that the Company may
only exercise its right to terminate this Agreement pursuant to this
Section 8.01(h) if (i) the stockholders of the Company have not yet adopted
this Agreement at the Company Meeting or any adjournment or postponement
thereof or by written consent; (ii) the Company shall have complied in all
material respects with Section 6.04; (iii) the Board of Directors of the
Company (acting upon the recommendation of the Special Committee) and after
consultation with the Special Committee Financial Advisor determines in
good faith that such Acquisition Proposal is a Superior Proposal; (iv) at
least five business days shall have passed since Parent received written
notice from the Company advising Parent that the Board of Directors of the
Company (acting upon the recommendation of the Special Committee) is
prepared to accept such Acquisition Proposal, which notice shall specify
the material terms and conditions of such Acquisition Proposal and if by
such fifth business day, Parent shall not have agreed to increase the
Merger Consideration and/or revise the other terms of this Agreement so
that the Merger
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Consideration and such terms, taken together as so revised, are, in the
good faith judgment of the Board of Directors of the Company (acting upon
the recommendation of the Special Committee), superior to such the
consideration and terms of such Acquisition Proposal and (v) simultaneously
with such termination, the Company shall make the payment specified in
Section 8.02(b).
SECTION 8.02. Effect of Termination. (a) In the event of termination of
this Agreement by either Parent or the Company as provided in Section 8.01, this
Agreement shall forthwith become void and have no effect, and none of Parent,
Merger Sub, the Company, any of their respective Subsidiaries or any of the
officers or directors of any of them shall have any liability of any nature
whatsoever hereunder, or in connection with the transactions contemplated
hereby, except that Sections 6.03(d), 6.03(e), 8.02, 8.04 and Article IX shall
survive any termination of this Agreement, and notwithstanding anything to the
contrary contained in this Agreement, neither Parent, Merger Sub, nor the
Company shall be relieved or released from any liabilities or damages arising
out of its willful breach of any provision of this Agreement; provided that in
no event shall any party hereto be liable for any punitive damages.
(b) In the event that:
(i) (x) Parent terminates this Agreement pursuant to (A) Section
8.01(d) as a result of an intentional breach by the Company of any
representation, warranty, covenant or agreement contained herein, or (B)
Section 8.01(f) or (y) the Company or Parent terminates this Agreement
pursuant to Section 8.01(e),
(ii) prior to such termination an Acquisition Proposal shall have been
communicated to the executive management, the Special Committee or Board of
Directors of the Company or any person shall have publicly announced an
intention (whether or not conditional) to make an Acquisition Proposal, and
(iii) within 12 months of such termination, the Company or any of its
Subsidiaries consummates an Acquisition Proposal or enters into a
definitive agreement with respect to an Acquisition Proposal,
then the Company shall pay to Parent a termination payment equal to $100 million
($100,000,000.00) (the "Company Termination Amount"), by wire transfer of
immediately available funds upon the earlier of (A) signing of a definitive
agreement with respect to an Acquisition Proposal and (B) consummation of an
Acquisition Proposal.
(c) In the event that the Company terminates this Agreement pursuant to
Section 8.01(h), then the Company shall pay the Company Termination Amount by
wire transfer of immediately available funds concurrently with delivery of
notice of termination by the Company and the making of such payment shall be a
condition of such termination.
(d) For purposes of Sections 8.01 and 8.02, "Acquisition Proposal" shall
mean a transaction or series of transactions which, if consummated as proposed,
would constitute an Acquisition Proposal (as defined in Section 6.04) which
would result in a person or group (as such term is defined in Section 13(d) of
the Exchange Act), other than Parent and its affiliates, owning, directly or
indirectly, 50% of the voting interests in the Company then outstanding or 50%
or more of the assets of the Company and its Subsidiaries, taken as a whole.
(e) The Company acknowledges that the agreements contained in this Section
8.02 are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, Parent would not enter into this Agreement;
accordingly, if the Company fails promptly to pay any amount due pursuant to
this Section 8.02 and, in order to obtain such payment, Parent commences a suit
which results in a judgment against the Company for the payment set forth in
this Section 8.02, the Company shall pay to Parent its costs and expenses
(including reasonable attorneys' fees) in connection with such suit, together
with interest on the Company Termination Amount from each date for payment until
the date of such payment at the prime rate of Citibank N.A. in effect on the
date such payment was required to be made. For the avoidance of doubt, approval
by the stockholders of the Company shall not be a condition to the payment of
any amount specified in this Section 8.02.
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SECTION 8.03. Amendment. Subject to compliance with applicable law, this
Agreement may be amended by Parent, Merger Sub and the Company at any time
before or after adoption of this Agreement by the stockholders of the Company;
provided, however, that after any adoption of this Agreement by the stockholders
of the Company, no amendment shall be made which by law requires further
approval by such stockholders without such further approval. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
SECTION 8.04. Extension; Waiver. At any time prior to the Effective Time,
subject to compliance with applicable law, Parent, Merger Sub and the Company
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligations or other acts of the other parties hereto for its
benefit, (b) waive any inaccuracies in the representations and warranties of the
other parties for its benefit contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein for the waiving party's benefit. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in a written instrument signed on behalf of such party, but such
extension or waiver or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement
and any certificate delivered pursuant hereto by any person shall terminate at
the Effective Time or upon the termination of this Agreement pursuant to Section
8.01, as the case may be, except that the agreements set forth in Articles I and
II and Sections 6.05, 6.10, 6.12 and 6.13 shall survive the Effective Time
indefinitely, and those set forth in Sections 6.03(d), 6.03(e), 8.02, 8.04 and
this Article IX shall survive termination indefinitely.
SECTION 9.02. Expenses. Except as otherwise provided in this Section, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense; provided, however, that the costs and expenses of printing and mailing
the Proxy Statement, and all filing and other fees paid to the SEC in connection
with the Merger, shall be borne equally by Merger Sub and the Company.
SECTION 9.03. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested)
or by a nationally recognized overnight courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 9.03):
if to Parent or Merger Sub:
c/o BNP Paribas
12 rue Chauchat
75009 Paris, FRANCE
Telecopy: 011-33-1-40-14-57-65
Attention: Pierre Mariani
with copies to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
Telecopy: (212) 225-3999
Attention: Daniel S. Sternberg, Esq.
Paul E. Glotzer, Esq.
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if to the Company:
c/o BancWest Corporation
999 Bishop Street
Honolulu, Hawaii 96813
Telecopy: (808) 533-7844
Attention: Howard H. Karr
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Telecopy: (212) 455-2502
Attention: Lee Meyerson, Esq.
Marni J. Lerner, Esq.
SECTION 9.04. Definitions and Usage. (a) For purposes of this Agreement,
the term:
(i) "affiliate" of a specified person means a person who directly or
indirectly through one or more intermediaries controls, is controlled by,
or is under common control with, such specified person;
(ii) "beneficial owner" with respect to any shares means a person who
shall be deemed to be the beneficial owner of such shares which such person
beneficially owns, as defined in Rule 13d-3 under the Exchange Act;
(iii) "business day" means any day other than a Saturday, Sunday or
one on which banks are authorized by law to close in New York, New York,
Paris, France, San Francisco, California or Honolulu, Hawaii;
(iv) "Code" means the Internal Revenue Code of 1986, as amended;
(v) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, as trustee or executor, by contract or credit
arrangement or otherwise;
(vi) "Material Adverse Effect" means,
(A) with respect to the Company, any effect that (1) is or is
reasonably likely to be material and adverse to the financial condition,
business or results of operations of the Company and its Subsidiaries
taken as a whole other than any change, effect, event or occurrence
arising out of the performance by the parties of their obligations under
this Agreement or (2) would prevent or materially impair the ability of
such person to perform its obligations under this Agreement or to
consummate the transactions contemplated hereby; and
(B) with respect to Parent, any effect that would prevent or
materially impair or delay the ability of Parent and Merger Sub to
perform their obligations under this Agreement or to consummate the
transactions contemplated hereby;
provided, however, that Material Adverse Effect shall not be deemed to
include the impact of (i) changes in banking and other laws of general
applicability or interpretations thereof by courts or governmental
authorities, (ii) changes in GAAP or regulatory accounting requirements
applicable to banks and their holding companies generally, (iii) this
Agreement and the transactions contemplated hereby and the announcement
hereof, (iv) actions or omissions of a party to this Agreement taken
with the prior written consent of the other parties to this Agreement,
in contemplation of the transactions contemplated hereby, (v) changes in
prevailing interest rates, currency exchange rates or general economic
conditions, or the occurrence of other events or developments affecting
banks and their holding companies generally except to the extent that
such changes, events or develop-
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ments have an adverse effect on the Company and its Subsidiaries taken
as a whole that is materially greater than the adverse effect on
comparable entities and (vi) any modifications or changes to valuation
policies and practices of the Company or any of its Subsidiaries in
connection with the Merger or restructuring charges, in each case taken
with the prior approval of Parent, in connection with the Merger, in
each case in accordance with GAAP;
(vii) "person" means an individual, corporation, limited liability
company, partnership, limited partnership, syndicate, person (including,
without limitation, a "person" as defined in Section 13(d)(3) of the
Exchange Act), trust, association or entity or government, political
subdivision, agency or instrumentality of a government;
(viii) "Standstill Agreement" means the Standstill and Governance
Agreement, dated as of November 1, 1998, between the Company and Parent.
(ix) "Subsidiary" and "Significant Subsidiary" shall have the meanings
ascribed to them in Rule 1-02 of Regulation S-X of the SEC. Notwithstanding
the foregoing, for purposes of this Agreement, the Company shall not be
deemed a Subsidiary or a Significant Subsidiary of Parent.
(x) "Superior Proposal" means any Acquisition Proposal which the Board
of Directors of the Company determines in its good faith judgment (A)
would, if consummated, be more favorable than the Merger to the holders of
Company Common Stock from a financial point of view and (B) constitutes a
transaction that, other than with respect to obtaining stockholder
approval, is reasonably capable of being consummated on the terms set
forth, taking into account all legal, financial, regulatory and other
aspects of such proposal.
A reference in this Agreement to any statute shall be to such statute as
amended from time to time, and to the rules and regulations promulgated
thereunder.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
<Table>
<Caption>
TERM SECTION
- ---- ----------
Acquisition Proposal........................................ 6.04, 8.02
Agreement................................................... Recitals
BHCA........................................................ 3.01(a)
Burdensome Condition........................................ 6.02(d)
Certificate of Merger....................................... 1.02
Certificate................................................. 2.01
Claims and Proceedings...................................... 3.11(a)
Class A Common Stock........................................ Recitals
Closing..................................................... 1.02
Closing Date................................................ 1.02
Company..................................................... Recitals
Company Benefit Plans....................................... 3.13(a)
Company Common Shares....................................... Recitals
Company Common Stock........................................ Recitals
Company Contract............................................ 3.16
Company Disclosure Schedule................................. 2.06(a)
Company Employees........................................... 6.11(b)
Company Equity Plans........................................ 2.03(b)
Company Meeting............................................. 6.01(a)
Company Preferred Stock..................................... Recitals
Company Regulatory Agreement................................ 3.17
Company Reports............................................. 3.14
Company Stockholder Approval................................ 3.03(c)
</Table>
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<Table>
<Caption>
TERM SECTION
- ---- ----------
Company Stock Option Plans.................................. 2.03(a)
Company Stock Plans......................................... 2.03(b)
Company Termination Amount.................................. 8.02(b)
Confidential Information.................................... 6.03(d)
Contract.................................................... 3.03(b)
Covered Parties............................................. 6.05(b)
DGCL........................................................ Recitals
Dissenting Shares........................................... 2.04(a)
DLLCA....................................................... Recitals
Effective Time.............................................. 1.02
Environmental Law........................................... 3.19(a)
ERISA....................................................... 3.13(a)
Exchange Act................................................ 3.06
Federal Reserve Board....................................... 3.04
Fiduciary Shares............................................ 2.01(b)
GAAP........................................................ 3.06
Governmental Entity......................................... 3.04
HSR Act..................................................... 3.04
Incentive Compensation Plan................................. 6.11(a)
Indemnified Parties......................................... 6.05(c)
Injunction.................................................. 7.01(c)
Lien........................................................ 3.01(b)
Litigation.................................................. 9.10
Merger...................................................... Recitals
Merger Consideration........................................ 2.01(c)
Merger Sub.................................................. Recitals
Merger Sub Units............................................ 2.01
NYSE........................................................ 3.04
Option...................................................... 2.03(a)
Option Spread............................................... 2.03(a)
Original Merger Agreement................................... Recitals
Parent...................................................... Recitals
Parent Disclosure Schedule.................................. 2.06
Parent Plans................................................ 6.11(c)
Parent Regulatory Agreement................................. 4.05(b)
Paying Agent................................................ 2.02(b)
PBGC........................................................ 3.13(g)
Pre-Termination Acquisition Proposal Event.................. 8.02(d)
Process Agent............................................... 9.10
Pro Rata Dividend........................................... 5.02(b)
Proxy Statement............................................. 6.02(a)
Regulatory Agencies......................................... 3.05
Representatives............................................. 6.03(a)
Requisite Regulatory Approvals.............................. 7.01(b)
Restricted Shares........................................... 2.03(b)
SEC......................................................... 3.04
Securities Act.............................................. 3.14
Special Committee........................................... Recitals
</Table>
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<Table>
<Caption>
TERM SECTION
- ---- ----------
Special Committee Financial Advisor......................... 3.08
SRO......................................................... 3.04
Standstill Agreement........................................ 3.07(c)
Surviving Corporation....................................... 1.01
Surviving Corporation Common Stock.......................... Recitals
Taxes....................................................... 2.01(d)
US Parent................................................... Recitals
Voting Debt................................................. 3.02
</Table>
(c) A fact, event, circumstance or occurrence shall be within a person's
"Knowledge" if, with respect to the Company or any of its Subsidiaries, such
fact, event, circumstance or occurrence is or was actually known by any of the
Company's or the relevant Subsidiary's executive officers or directors, or, with
respect to the Parent or any of its Subsidiaries, such fact, event or
circumstance or occurrence is or was actually known by any of Parent's or the
relevant Subsidiary's executive officers or directors.
(d) The symbol "$" and the word "dollar" or "dollars" shall refer to the
lawful currency of the United States of America.
SECTION 9.05. Accounting Terms. All accounting terms used herein which are
not expressly defined in this Agreement shall have the respective meanings given
to them in accordance with GAAP.
SECTION 9.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the major economic or
legal substance of the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Merger be consummated as originally contemplated to the fullest
extent possible.
SECTION 9.07. Entire Agreement; Assignment. This Agreement (including the
Parent Disclosure Schedule and the Company Disclosure Schedule, which are hereby
incorporated herein and made a part hereof for all purposes as if fully set
forth herein) constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other parties, which shall
not be unreasonably withheld, except that Merger Sub may assign all or any of
its rights and obligations hereunder to any wholly owned subsidiary of Parent or
Merger Sub; provided, that no such assignment shall change the amount or nature
of the Merger Consideration or relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations.
SECTION 9.08. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, other than Section 6.05 (which is intended to be for the
benefit of the persons covered thereby and may be enforced by such persons).
SECTION 9.09. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
SECTION 9.10. Governing Law; Consent to Jurisdiction. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware applicable to contracts made and to be performed entirely in such
State. Each of the parties hereto hereby irrevocably and unconditionally
consents to
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submit to the non-exclusive jurisdiction of the courts of the State of New York
and of the United States of America, in each case located in the County of New
York, for any action, proceeding or investigation in any court or before any
governmental authority ("Litigation") arising out of or relating to this
Agreement and the transactions contemplated hereby. Each of the parties hereto
hereby irrevocably and unconditionally waives, and agrees not to assert, by way
of motion, as a defense, counterclaim or otherwise, in any such Litigation, the
defense of sovereign immunity, any claim that it is not personally subject to
the jurisdiction of the aforesaid courts for any reason other than the failure
to serve process in accordance with this Section 6.12, that it or its property
is exempt or immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise), and to the fullest extent permitted by applicable law,
that the Litigation in any such court is brought in an inconvenient forum, that
the venue of such Litigation is improper, or that this Agreement, or the subject
matter hereof, may not be enforced in or by such courts and further irrevocably
waives, to the fullest extent permitted by applicable law, the benefit of any
defense that would hinder, fetter or delay the levy, execution or collection of
any amount to which the party is entitled pursuant to the final judgment of any
court having jurisdiction. Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any Litigation arising out of or relating to
this Agreement or the transactions contemplated hereby.
(b) Parent hereby irrevocably designates French American Banking
Corporation (in such capacity, the "Process Agent"), with an office at 499 Park
Avenue New York, New York, 10022 its designee, appointee and agent to receive,
for and on its behalf, service of process in such jurisdiction in any Litigation
arising out of or relating to this Agreement and such service shall be deemed
complete upon delivery thereof to the Process Agent; provided that in the case
of any such service upon the Process Agent, the party effecting such service
shall also deliver a copy thereof to Parent in the manner provided in Section
9.03. Each of the parties further irrevocably consents to the service of process
out of any of the aforementioned courts in any such Litigation by the mailing of
copies thereof by registered mail, postage prepaid, to such party at its address
set forth in this Agreement, such service of process to be effective upon
acknowledgment of receipt of such registered mail. Parent expressly acknowledges
that the foregoing waiver is intended to be irrevocable under the laws of the
State of New York and of the United States of America; provided that Parent's
consent to jurisdiction and service contained in this Section 9.10 is solely for
the purpose referred to in this Section 9.10 and shall not be deemed to be a
general submission to said courts or in the State of New York other than for
such purpose. If the Process Agent shall cease to act as such or to exist, BNP
covenants that it shall appoint without delay another such agent reasonably
satisfactory to the Company.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed consent by any party to jurisdiction in any litigation initiated, or
service of process, by any person who is not a party hereto.
SECTION 9.11. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 9.12. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
SECTION 9.13. Construction. This Agreement and any documents or
instruments delivered pursuant hereto or in connection herewith shall be
construed without regard to the identity of the person who drafted the various
provisions of the same. Each and every provision of this Agreement and such
other documents and instruments shall be construed as though all of the parties
participated equally in the drafting of the same. Consequently, the parties
acknowledge and agree that any rule of construction that a document is to be
construed against the drafting party shall not be applicable either to this
Agreement or such other documents and instruments.
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IN WITNESS WHEREOF, the Company, Parent and Merger Sub have caused this
Agreement to be executed as of July 19, 2001 by their respective officers
thereunto duly authorized.
BANCWEST CORPORATION
By: /s/ WALTER A. DODS, JR.
-------------------------------------------------------------------------------
Name: Walter A. Dods, Jr.
Title: Chairman and Chief Executive
Officer
BNP PARIBAS
By: /s/ PIERRE MARIANI
------------------------------------
Name: Pierre Mariani
Title: Head of International Retail
Banking
CHAUCHAT L.L.C.
By its sole Member, Chauchat Holdings
Corporation
By: /s/ JACQUES ARDANT
------------------------------------
Name: Jacques Ardant
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
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EXHIBIT A
FORM OF
CERTIFICATE OF INCORPORATION
OF
BANCWEST CORPORATION
FIRST: The name of the corporation is BancWest Corporation (hereinafter
referred to as the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle 19801. The name and address of its resident
agent is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware
19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is 150,000,000 shares of common stock and the par value of
each of such shares is $0.01.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the by-laws.
Election of directors need not be by ballot unless the by-laws so provide.
(2) The Board of Directors shall have powers without the assent or
vote of the stockholders to make, alter, amend, change, add to or repeal
the by-laws of the Corporation; to fix and vary the amount to be reserved
for any proper purpose; to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the Corporation; to determine
the use and disposition of any surplus or net profits; and to fix the times
for the declaration and payment of dividends.
(3) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or
at any meeting of the stockholders called for the purpose of considering
any such act or contract, and any contract or act that shall be approved or
be ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and as binding
upon the Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether or
not the contract or act would otherwise be open to legal attack because of
directors' interest, or for any other reason.
(4) In addition to the powers and authorities herein before or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this certificate, and to any
by-laws from time to time made by the stockholders; provided, however, that
no by-laws so made shall invalidate any prior act of the directors which
would have been valid if such by-law had not been made.
SIXTH: To the fullest extent permitted by the Delaware General Corporation
Law as it exists or may hereafter be amended, a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of a fiduciary duty as a director.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any
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court of equitable jurisdiction within the State of Delaware, may, on the
application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers appointed
for the Corporation under the provisions of section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under the provisions of
section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
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EXHIBIT B
FORM OF
AMENDED AND RESTATED
BY-LAWS
OF
BANCWEST CORPORATION
ARTICLE I
SHAREHOLDERS
SECTION 1. Place of Meetings. Meetings of the shareholders may be held at
such place or places, within or without the State of Delaware, as shall be fixed
by the directors and stated in the notice of the meeting.
SECTION 2. Annual Meeting. The annual meeting of shareholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date as may be fixed by the
directors and stated in the notice of the meeting.
SECTION 3. Notice of Annual Meeting. Notice of the annual meeting shall be
given to each shareholder entitled to vote, at least ten days prior to the
meeting.
SECTION 4. Special Meetings. Special meetings of the shareholders for any
purpose or purposes may be called by the President or Secretary and must be
called upon receipt by either of them of the written request of the holders of
twenty-five percent of the stock then outstanding and entitled to vote.
SECTION 5. Notice of Special Meeting. Notice of a special meeting, stating
the time, place and purpose or purposes thereof, shall be given to each
shareholder entitled to vote, at least ten days prior to the meeting. The notice
shall also set forth at whose direction it is being issued.
SECTION 6. Quorum. At any meeting of the shareholders, the holders of a
majority of the shares of stock then entitled to vote shall constitute a quorum
for all purposes, except as otherwise provided by law or the Certificate of
Incorporation.
SECTION 7. Voting. At each meeting of the shareholders, every holder of
stock then entitled to vote may vote in person or by proxy, and, except as may
be otherwise provided by the Certificate of Incorporation, shall have one vote
for each share of stock registered in such holder's name.
SECTION 8. Adjourned Meeting. Any meeting of shareholders may be adjourned
to a designated time and place by a vote of a majority in interest of the
shareholders present in person or by proxy and entitled to vote, even though
less than a quorum is so present. No notice of such an adjourned meeting need be
given, other than by announcement at the meeting, and any business may be
transacted which might have been transacted at the meeting as originally called.
SECTION 9. Action by Written Consent of Shareholders. Whenever by any
provision of statute or of the Certificate of Incorporation or of these By-Laws,
the vote of shareholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and vote of
shareholders may be dispensed with, if holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted shall consent in writing to such corporate action being taken.
ARTICLE II
DIRECTORS
SECTION 1. Number. The number of directors shall be determined from time
to time by resolution adopted by affirmative vote of a majority of such
directors then in office. The directors shall hold office for the
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term of one year and until their successor or successors is or are elected and
shall qualify. The number of directors may be less than three when all of the
shares are owned by less than three shareholders, but in such event the number
of directors may not be less than the number of shareholders. Directors need not
be shareholders.
SECTION 2. Powers. The Board of Directors may adopt such rules and
regulations for the conduct of its meetings, the exercise of its powers and the
management of the affairs of the corporation as it may deem proper, not
inconsistent with the laws of the State of Delaware, the Certificate of
Incorporation or these By-Laws.
In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the directors may exercise all such powers of the
corporation and do such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the shareholders.
SECTION 3. Meeting, Quorum, Action without Meeting. Meetings of the Board
may be held at any place, either within or outside the State of Delaware,
provided a quorum be in attendance. Except as may be otherwise provided by the
Certificate of Incorporation or by the Delaware General Corporation Law, a
majority of the directors in office shall constitute a quorum at any meeting of
the Board and the vote of a majority of a quorum of directors shall constitute
the act of the Board.
The Board of Directors may hold an annual meeting, without notice,
immediately after the annual meeting of shareholders. Regular meetings of the
Board of Directors may be established by a resolution adopted by the Board. The
Chairman of the Board (if any) or the President or Secretary may call, and at
the request of any two directors, must call a special meeting of the Board of
Directors, five days' notice of which shall be given by mail, or two days'
notice personally or by telegraph or cable to each director.
Any one or more members of the Board or any Committee thereof may
participate in a meeting of such Board or Committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
Any action required or permitted to be taken by the Board or any Committee
thereof may be taken without a meeting if all members of the Board or the
Committee consent in writing to the adoption of a resolution authorizing the
action.
The resolution and the written consents thereto by the members of the Board
or Committee shall be filed with the minutes of the proceedings of the Board or
Committee.
SECTION 4. Vacancies, Removal. Except as otherwise provided in the
Certificate of Incorporation or in the following paragraph, vacancies occurring
in the membership of the Board of Directors, from whatever cause arising
(including vacancies occurring by reason of the removal of directors without
cause and newly created directorships resulting from any increase in the
authorized number of directors), may be filled by a majority vote of the
remaining directors, though less than a quorum, or such vacancies may be filled
by the shareholders.
Except where the Certificate of Incorporation contains provisions
authorizing cumulative voting or the election of one or more directors by class
or their election by holders of bonds, or requires all action by shareholders to
be by a greater vote, any one or more of the directors may be removed, (a)
either for or without cause, at any time, by vote of the shareholders holding a
majority of the outstanding stock of the corporation entitled to vote, present
in person or by proxy, at any special meeting of the shareholders or, (b) for
cause, by action of the Board of Directors at any regular or special meeting of
the Board. A vacancy or vacancies occurring from such removal may be filled at
the special meeting of shareholders or at a regular or special meeting of the
Board of Directors.
SECTION 5. Committees. The Board of Directors, by resolution adopted by a
majority of the entire Board, may designate from its members an Executive
Committee or other committee or committees, each
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consisting of three or more members, with such powers and authority (to the
extent permitted by law) as may be provided in said resolution.
ARTICLE III
OFFICERS
SECTION 1. Executive Officers. The executive officers of the corporation
shall be a President, one or more Vice-Presidents, a Treasurer and a Secretary,
all of whom shall be elected annually by the directors, who shall hold office
during the pleasure of the directors. In addition, the Board of Directors may
elect a Chairman of the Board of Directors. Except for the offices of President
and Secretary, any two offices or more may be held by one person. Provided,
however, when all of the issued and outstanding stock of the corporation is
owned by one person, such person may hold all or any combination of offices. All
vacancies occurring among any of the officers shall be filled by the directors.
Any officer may be removed at any time by the affirmative vote of a majority
(unless the Certificate of Incorporation required a larger vote) of the
directors present at a special meeting of directors called for the purpose.
SECTION 2. Other Officers. The Board of Directors may appoint such other
officers and agents with such powers and duties as it shall deem necessary.
SECTION 3. The Chairman of the Board. The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors and he shall have and perform such other duties as from time to time
may be assigned to him by the Board of Directors or the Executive Committee.
SECTION 4. The President. The President, who may, but need not be a
director, shall, in the absence or non-election of a Chairman of the Board,
preside at all meetings of the shareholders and directors. While the directors
are not in session, he shall have general management and control of the business
and affairs of the corporation.
SECTION 5. The Vice-President. The Vice-President, or if there be more
than one, the senior Vice President, as determined by the Board of Directors, in
the absence or disability of the President, shall exercise the powers and
perform the duties of the President and each Vice-President shall exercise such
other powers and perform such other duties as shall be prescribed by the
directors.
SECTION 6. The Treasurer. The Treasurer shall have custody of all funds,
securities and evidences of indebtedness of the corporation; he shall receive
and give receipts and acquittances for money paid in on account of the
corporation, and shall pay out of the funds on hand all bills, pay-rolls, and
other just debts of the corporation, of whatever nature, upon maturity; he shall
enter regularly in books to be kept by him for that purpose, full and accurate
accounts of all moneys received and paid out by him on account of the
corporation, and he shall perform all other duties incident to the office of
Treasurer and as may be prescribed by the directors.
SECTION 7. The Secretary. The Secretary shall keep the minutes of all
proceedings of the directors and of the shareholders; he shall attend to the
giving and serving of all notices to the shareholders and directors or other
notice required by law or by these By-Laws; he shall affix the seal of the
corporation to deeds, contracts and other instruments in writing requiring a
seal, when duly signed or when so ordered by the directors; he shall have charge
of the certificate books and stock books and such other books and papers as the
Board may direct, and shall perform all other duties incident to the office of
Secretary.
SECTION 8. Salaries. The salaries of all officers shall be fixed by the
Board of Directors, and the fact that any officer is a director shall not
preclude him from receiving a salary as an officer, or from voting upon the
resolution providing the same.
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ARTICLE IV
CAPITAL STOCK
SECTION 1. Form and Execution of Certificates. Certificates of stock shall
be in such form as required by the Delaware General Corporation Law and as shall
be adopted by the Board of Directors. They shall be numbered and registered in
the order issued; shall be signed by the Chairman or a Vice-Chairman of the
Board (if any) or by the President or a Vice-President and by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be
sealed with the corporate seal or a facsimile thereof. When such a certificate
is countersigned by a transfer agent or registered by a registrar, the
signatures of any such officers may be facsimile.
SECTION 2. Transfer. Transfer of shares shall be made only upon the books
of the corporation by the registered holder in person or by attorney, duly
authorized, and upon surrender of the certificates for such shares properly
assigned for transfer.
SECTION 3. Lost or Destroyed Certificates. The holder of any certificate
representing shares of stock of the corporation may notify the corporation of
any loss, theft or destruction thereof, and the Board of Directors may
thereupon, in its discretion, cause a new certificate for the same number of
shares to be issued to such holder upon satisfactory proof of such loss, theft
or destruction, and the deposit of indemnity by way of bond or otherwise, in
such form and amount and with such surety or sureties as the Board of Directors
may require, to indemnify the corporation against loss or liability by reason of
the issuance of such new certificates.
SECTION 4. Record Date. In lieu of closing the books of the corporation,
the Board of Directors may fix, in advance, a date, not exceeding fifty days,
nor less than ten days, as the record date for the determination of shareholders
entitled to receive notice of, or to vote, at any meeting of shareholders, or to
consent to any proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of any dividends, or allotment of any
rights, or for the purpose of any other action.
ARTICLE V
INDEMNIFICATION
SECTION 1. Indemnification. To the extent permitted by Delaware law from
time to time in effect, the corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action or suit by or in the right of the
corporation to procure a judgment in its favor) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or,
while a director, officer, employee or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. Indemnification. To the extent permitted by Delaware law from
time to time in effect, the corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or, while a director,
officer, employee or agent of the corporation, is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture,
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trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
SECTION 3. Expenses. To the extent that a present or former director or
officer or an employee or agent of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, such person shall be indemnified by the corporation against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
SECTION 4. Authorization of Indemnification Payments. Any indemnification
under Sections 1 and 2 of this Article (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director, officer, employee or
agent is proper in the circumstances because such person has met the applicable
standard of conduct set forth in said Sections 1 and 2 of this Article. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, event though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by independent
legal counsel (compensated by the corporation) in a written opinion, or (4) by
the stockholders.
SECTION 5. Interim Reimbursement of Expenses. Expenses incurred by a
present or former director or officer of the corporation in defending a civil or
criminal action, suit or proceeding shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this Article. Expenses incurred
in defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the employee or
agent to repay such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the corporation as authorized in this
Article.
SECTION 6. Non-Exclusive Remedy. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
SECTION 7. Former Directors, Officer, Employees and Agents. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8. Insurance. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or who is or was serving at the request of the corporation, as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or of Section 145 of the General Corporation Law of Delaware, as it may
be amended or substituted for.
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SECTION 9. Claims Commenced by Indemnitee. Notwithstanding Sections 1 and
2 of this Article, except as otherwise provided in Section 10 hereof, the
corporation shall be required to indemnify an indemnitee in connection with any
action, suit or proceeding (or part thereof) commenced by such indemnitee only
if the commencement of such action, suit or proceeding (or part thereof) by the
indemnitee was authorized by the Board of Directors.
SECTION 10. Enforcement by Indemnitee. If a claim for indemnification or
advancement of expenses under this Article is not paid in full within sixty days
after a written claim therefor by the indemnitee has been received by the
Corporation, the indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation shall have
the burden of proving that the indemnitee is not entitled to the requested
indemnification or advancement of expenses under applicable law.
SECTION 11. Effect of Repeal or Modification. Any repeal or modification
of the foregoing provisions of this Article shall not adversely affect any right
or protection hereunder of any indemnitee in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE VI
MISCELLANEOUS
SECTION 1. Dividends. The directors may declare dividends from time to
time upon the capital stock of the corporation from the surplus or net profits
available therefor.
SECTION 2. Seal. The directors shall provide a suitable corporate seal
which shall be in the charge of the Secretary and shall be used as authorized by
the By-Laws.
SECTION 3. Fiscal Year. The fiscal year of the corporation shall be fixed
by the directors.
SECTION 4. Checks, Notes, etc. Checks, notes, drafts, bills of exchange
and orders for the payment of money shall be signed or endorsed in such manner
as shall be determined by the directors.
The funds of the corporation shall be deposited in such bank or trust
company, and checks drawn against such funds shall be signed in such manner, as
may be determined from time to time by the directors.
SECTION 5. Notice and Waiver of Notice. Any notice required to be given
under these By-Laws may be waived by the person entitled thereto, in writing, by
telegram, cable or radiogram, and the presence of any person at a meeting shall
constitute waiver of notice thereof as to such person.
Whenever any notice is required by these By-Laws to be given, personal
notice is not meant unless expressly so stated; and any notice so required shall
be deemed to be sufficient if given by depositing it in a post office or post
box in a sealed postpaid wrapper, addressed to such shareholder, officer or
director, at such address as appears on the books of the corporation and such
notice shall be deemed to have been given on the day of such deposit.
ARTICLE VII
AMENDMENTS
SECTION 1. By Shareholders. These By-Laws may be amended at any
shareholders' meeting by vote of the shareholders holding a majority (unless the
Certificate of Incorporation requires a larger vote) of the outstanding stock
having voting power, present either in person or by proxy, provided notice of
the amendment is included in the notice or waiver of notice of such meeting.
SECTION 2. By Directors. The Board of Directors may also amend these
By-Laws at any regular or special meeting of the Board by a majority (unless the
Certificate of Incorporation requires a larger vote) vote of the entire Board,
but any By-Laws so made by the Board of Directors may be altered or repealed by
the shareholders.
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ANNEX B
PERSONAL AND CONFIDENTIAL
May 8, 2001
Special Committee of the Board of Directors
BancWest Corporation
999 Bishop Street
Honolulu, Hawaii 96813
Ladies and Gentlemen:
You have requested our opinion as to the fairness from a financial point of
view to the holders of the outstanding shares of Common Stock, par value $1.00
per share (the "Shares"), of BancWest Corporation (the "Company") of the $35.00
per Share in cash to be received by such holders pursuant to the Agreement and
Plan of Merger, dated as of May 8, 2001, among BNP Paribas ("BNP"), Chauchat
L.L.C., a wholly owned subsidiary of BNP, and the Company (the "Agreement").
Goldman, Sachs & Co., as part of its investment banking business, is
continually engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions, negotiated underwritings, competitive
biddings, secondary distributions of listed and unlisted securities, private
placements and valuations for estate, corporate and other purposes. We are
familiar with the Company, having provided certain investment banking services
to the Company from time to time, including having acted as financial advisor to
First Hawaiian, Inc. (predecessor to BancWest Corporation) in connection with
its merger with BancWest Corporation, then a wholly owned subsidiary of BNP, in
November 1998, having acted as the Company's financial advisor in connection
with a block trade of 350,000 Shares in June 1999, having acted as
joint-bookrunning manager with respect to an offering of $150 million aggregate
principal amount of Quarterly Income Preferred Securities ("QUIPS") of the
Company in December 2000, and having acted as the Company's financial advisor in
connection with, and having participated in certain of the negotiations leading
to, the Agreement. We have also provided certain investment banking services to
BNP from time to time, including having acted as financial advisor to BNP in
connection with its acquisition of Compagnie Financiere de Paribas SA in October
1999 and having acted as joint-lead manager in connection with the offer of $500
million of non-cumulative trust preferred securities of BNP in November 2000,
and we may provide investment banking services to BNP in the future. Goldman,
Sachs & Co. provides a full range of financial advisory and securities services
and, in the course of its normal trading activities, may from time to time
effect transactions and hold positions in securities, including derivative
securities, of the Company and BNP for its own account and for the accounts of
customers.
In connection with this opinion, we have reviewed, among other things, the
Agreement; Annual Reports to Stockholders and Annual Reports on Form 10-K of the
Company for the five years ended December 31, 2000; Annual Reports to
Stockholders of BNP for the five years ended December 31, 2000; certain interim
reports to stockholders and Quarterly Reports on Form 10-Q of the Company;
certain interim reports to stockholders of BNP; certain other communications
from the Company to its stockholders; and certain internal financial analyses
and forecasts for the Company prepared by its management and approved for use in
connection with this opinion by the management of the Company. We also have held
discussions with members of the senior management of the Company regarding their
assessment of its past and current business operations, financial condition and
future prospects. In addition, we have reviewed the current and historical
reported price and trading activity for the Shares, compared certain financial
and stock market information for the Company with similar information for
certain other companies the securities of which are publicly traded, reviewed
the financial terms of certain recent business combinations in the banking
industry specifically and in other industries generally and performed such other
studies and analyses as we considered appropriate.
We have relied upon the accuracy and completeness of all of the financial,
accounting and other information discussed with or reviewed by us and have
assumed such accuracy and completeness for purposes
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Special Committee of the Board of Directors
BancWest Corporation
May 8, 2001
Page 2
of rendering this opinion. In that regard, we have assumed, with your consent,
that the financial forecasts provided to us were reasonably prepared on a basis
reflecting the best currently available judgments and estimates of the Company.
In addition, we have not made an independent evaluation or appraisal of the
assets and liabilities of the Company (including off-balance sheet assets and
liabilities), and we have not been furnished with any such evaluation or
appraisal. We note that BNP owns 45% of the outstanding capital stock of the
Company and has expressed no interest in a business combination involving the
Company other than a transaction as a purchaser of Shares. Our advisory services
and the opinion expressed herein are provided for the information and assistance
of the Special Committee of the Board of Directors of the Company in connection
with its consideration of the transaction contemplated by the Agreement and such
opinion does not constitute a recommendation as to how any holder of Shares
should vote with respect to such transaction.
Based upon and subject to the foregoing and based upon such other matters
as we consider relevant, it is our opinion that as of the date hereof the $35.00
per Share in cash to be received by the holders of Shares pursuant to the
Agreement is fair from a financial point of view to such holders.
Very truly yours,
/s/ GOLDMAN, SACHS & CO.
(GOLDMAN, SACHS & CO.)
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ANNEX C
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
SECTION 262. APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to sec. 228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to sec. 251 (other than a merger effected pursuant to
sec. 251(g) of this title), sec. 252, sec. 254, sec. 257, sec. 258, sec. 263 or
sec. 264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which
stock, or depository receipts in respect thereof, at the record date fixed
to determine the stockholders entitled to receive notice of and to vote at
the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of sec. 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
sec.sec. 251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a, b and c of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under sec. 253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
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(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, shall notify each of its stockholders who was such on the
record date for such meeting with respect to shares for which appraisal
rights are available pursuant to subsections (b) or (c) hereof that
appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of such
stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of
such stockholder's shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such stockholder's
shares. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A stockholder electing to take such action must
do so by a separate written demand as herein provided. Within 10 days after
the effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that the
merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to sec.228 or
sec.253 of this title, then, either a constituent corporation before the
effective date of the merger or consolidation, or the surviving or
resulting corporation within ten days thereafter, shall notify each of the
holders of any class or series of stock of such constituent corporation who
are entitled to appraisal rights of the approval of the merger or
consolidation and that appraisal rights are available for any or all shares
of such class or series of stock of such constituent corporation, and shall
include in such notice a copy of this section. Such notice may, and, if
given on or after the effective date of the merger or consolidation, shall,
also notify such stockholders of the effective date of the merger or
consolidation. Any stockholder entitled to appraisal rights may, within 20
days after the date of mailing of such notice, demand in writing from the
surviving or resulting corporation the appraisal of such holder's shares.
Such demand will be sufficient if it reasonably informs the corporation of
the identity of the stockholder and that the stockholder intends thereby to
demand the appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise
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entitled to appraisal rights, may file a petition in the Court of Chancery
demanding a determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder's demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted
such stockholder's certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that such stockholder is not entitled to appraisal rights under this
section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation is a corporation of this State or of any state.
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128
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
BANCWEST CORPORATION
SPECIAL MEETING - 2001
The undersigned stockholder hereby appoints Dr. Julia Ann Frohlich,
John A. Hoag and Robert A. Fuhrman, and each of them, each with full power of
substitution, the proxies and attorneys-in-fact of the undersigned to attend the
Special Meeting of Stockholders of BANCWEST CORPORATION (the "Corporation") to
be held on September , 2001 at 9:00 a.m., Hawaiian Standard Time, in the Board
Room, 30th Floor, First Hawaiian Center, 999 Bishop Street, Honolulu, Hawaii,
and any adjournments or postponements thereof, and to vote at said meeting and
any adjournments or postponements thereof all shares of stock of the Corporation
standing in the name of the undersigned stockholder.
This proxy is solicited on behalf of the board of directors. This
proxy, when properly executed, will be voted in a manner directed herein by the
undersigned stockholder. If no direction is made, the proxy will be voted FOR
proposals 1 and 2 and in the judgment of the persons named herein on any other
matter which may properly come before the meeting or any adjournments or
postponements of the special meeting.
(Continued and To Be Dated and Signed On The Other Side)
- --------------------------------------------------------------------------------
SPECIAL MEETING OF STOCKHOLDERS OF
BANCWEST CORPORATION
, 2001
-----------------------------
PROXY VOTING INSTRUCTIONS
-----------------------------
TO VOTE BY MAIL
- --------------
Please date, sign and mail your proxy card in the envelope provided as soon as
possible.
TO VOTE BY TELEPHONE (TOUCH-TONE PHONE ONLY)
- --------------
Please call toll-free 1-800-PROXIES and follow the instructions.
Have your control number and the proxy card available when you call.
TO VOTE BY INTERNET
- --------------
Please access the web page at "www.voteproxy.com" and follow the on-screen
instructions.
Have your control number available when you access the web page.
YOUR CONTROL NUMBER IS --
* Please Detach and Mail in the Envelope Provided *
- -----------------------------------------------------------
130
[X] Please mark your votes as in this example.
The board of directors of the Corporation recommends a vote
for adoption of the Agreement and Plan of Merger.
1. Proposal to adopt the Agreement and FOR AGAINST ABSTAIN
Plan of Merger, dated as of May 8, 2001, [_] [_] [_]
as Amended and Restated as of July 19, 2001,
among BancWest Corporation, BNP
Paribas and Chauchat L.L.C., as the Merger
Agreement may be further amended from
time to time.
2. Proposal to adjourn the special meeting, FOR AGAINST ABSTAIN
if necessary, to solicit additional votes [_] [_] [_]
in favor of adoption of the Merger Agreement.
Please mark, sign, date and return this proxy card promptly, using the enclosed
envelope.
SIGNATURE DATE SIGNATURE DATE
- --------------- --------- -------------- -----------
NOTE: Stockholder(s) should sign above exactly as name(s) appear(s) hereon, but
minor discrepancies in such signatures will not invalidate this proxy. If
more than one stockholder, all should sign.