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Exhibit 99(d)(2)
WAIVER LETTER
May 7, 2001
BNP Paribas
00, Xxxxxxxxx xxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
Ladies and Gentlemen:
Reference is made to the Standstill and Governance Agreement, dated as
of November 1, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Standstill Agreement"), between BancWest Corporation (formerly known
as First Hawaiian, Inc.), a Delaware corporation (the "Company"), and BNP
Paribas (formerly known as Banque Nationale de Paris), a societe anonyme or
limited liability banking corporation organized under the laws of the Republic
of France ("BNP"). Capitalized terms not otherwise defined in this Waiver Letter
have the same meanings as specified in the Standstill Agreement.
A. PRELIMINARY STATEMENTS
1. Pursuant to Article II of the Standstill Agreement, until November
1, 2002, BNP is subject to certain Acquisition Restrictions which restrict its
ability to, among other things, acquire or propose to acquire additional Voting
Securities of the Company or make or effect a Company Transaction Proposal.
2. The Executive Committee heretofore created a special committee of
Independent Directors (the "Special Committee") and on May 3, 2001 granted it
full authority to, among other things, respond to exploratory discussions with
respect to the possibility of BNP making a Business Combination Proposal and, if
so, the possible terms thereof.
3. By letter dated May 4, 2001 to the Special Committee, BNP submitted
a Business Combination Proposal in accordance with a waiver granted pursuant to
Section 6.5 of the Standstill Agreement.
4. On May 6, 2001 the Special Committee met (the "Special Committee
Meeting") and unanimously determined that the Business Combination Proposal set
forth in BNP's May 4 letter and the proposed form of Agreement and Plan of
Merger included therewith (the "Merger Agreement") submitted by BNP to the
Special Committee on that date is fair to and in the best interests of the
Company and the holders of the Company Common Stock. The Special Committee
accordingly recommended unanimously that the Board of Directors approve the
Merger Agreement.
5. At the Special Committee Meeting, the Special Committee unanimously
determined to recommend to the Board of Directors the waiver of Article II of
the Standstill Agreement
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solely to the extent necessary to allow BNP to enter into the Merger Agreement
with the Company and to take all actions contemplated thereby and necessary to
consummate the transactions contemplated therein.
6. On May 7, 2001 the full Board of Directors met and determined, by a
unanimous vote of the Independent Directors (constituting a majority of the
entire Board of Directors), that the Business Combination Proposal contained in
the Merger Agreement is fair to and in the best interests of the Company and the
holders of the Company Common Stock and accordingly determined to approve the
Merger Agreement.
B. WAIVER
1. Based upon the foregoing determinations of the Special Committee and
of the Board of Directors, directors constituting a majority of the Board of
Directors, acting pursuant to Section 6.5 of the Standstill Agreement, have
approved this letter, and by its signature below, the Company hereby waives
Article II of the Standstill Agreement solely to the extent necessary to allow
BNP to enter into the Merger Agreement with the Company and to take all actions
contemplated thereby and necessary to consummate the transactions contemplated
therein.
2. It is further understood and agreed that any disclosure made by BNP
in accordance with and as required by the Exchange Act, or other applicable law,
with respect to the matters covered or contemplated by the Merger Agreement
shall not constitute a violation of the Standstill Agreement, provided that such
disclosures are made consistent with the terms of the Merger Agreement.
3. In the event of any termination of the Merger Agreement prior to the
Effective Time (as such term is defined therein) the waiver provided hereby from
the restrictions of the Standstill Agreement shall immediately, and without the
need for any action by or notice to any person, terminate and be of no further
force or effect.
C. MISCELLANEOUS
The waiver set forth herein is limited in effect, shall apply only as
expressly set forth herein and shall not constitute or be deemed to be a waiver
of or consent under any other provision of the Standstill Agreement or to any
Business Combination Proposal other than that set forth in the Merger Agreement.
The Standstill Agreement shall otherwise remain in full force and effect in all
respects.
This Waiver Letter may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same document. Delivery of an executed counterpart of a
signature page to this Waiver Letter by telecopier shall be effective as
delivery of a manually executed counterpart of this Waiver Letter.
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This Waiver Letter shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the principles
of conflicts of law.
BANCWEST CORPORATION
By: /s/ Xxxxxx X. Xxxx, Xx.
________________________
Name: Xxxxxx X. Xxxx, Xx.
Title: Chief Executive Officer
Agreed to as of the date first above written:
BNP PARIBAS
By: _________________________
Name:
Title:
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This Waiver Letter shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the principles
of conflicts of law.
BANCWEST CORPORATION
By: _____________________________
Name:
Title:
Agreed to as of the date first above written:
BNP PARIBAS
By: /s/ Xxxxxx Xxxxxxx
____________________
Name: Xxxxxx Xxxxxxx
Title: Head of International Retail Banking
