EXHIBIT 10.29
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "AGREEMENT"), dated as of November 20,
2002, is entered into by and between BancWest Corporation, a Delaware
corporation ("BW"), and BNP Paribas S.A., a societe anonyme or limited liability
banking corporation organized under the laws of the Republic of France ("BNP
PARIBAS").
WHEREAS, BW is the owner of all 3,276,535 of the issued and outstanding
shares of common stock, par value $5 per share (the "COMMON STOCK"), of Bank of
the West, a California banking corporation (the "BANK");
WHEREAS, in connection with the acquisition of United California Bank, BW
borrowed $800 million (the "LOAN") on an interim basis from the New York branch
of BNP Paribas and desires to restructure said financing in compliance with the
terms of the application to the Board of Governors of the Federal Reserve System
seeking approval of the acquisition of United California Bank by setting up a
long term financing structure on terms which BW regards to be in its best
interests;
WHEREAS, in order to refinance the Loan, BW has agreed to sell to BNP
Paribas, and BNP Paribas has agreed to purchase from BW, 485,413 shares of
Common Stock (the "MINORITY SHARES") for their $800 million fair value (the
"ORIGINAL PURCHASE PRICE"), pursuant to a Stock Purchase Agreement, dated as of
the date hereof, between BW and BNP Paribas (the "STOCK PURCHASE AGREEMENT"),
and BW will use the sale proceeds to repay the current $800 million outstanding
principal balance of the interim debt; and
WHEREAS, BW wishes to retain the right to repurchase the Minority Shares,
pursuant to the terms and subject to the conditions set forth herein, in order
to be able to restore its position as the owner of all of the issued and
outstanding Common Stock;
NOW THEREFORE, in consideration of the representations and warranties
contained in this Agreement, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which is hereby acknowledged, and intending
to be legally bound, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. Unless the context otherwise requires, the terms
defined in this Article I shall, for the purposes of this Agreement, have the
meanings specified herein.
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An "ACCELERATION EVENT" shall be deemed to occur if (i) BNP Paribas and
its Affiliates cease to own directly or indirectly securities representing at
least 80% of the voting power of BW, (ii) an event occurs causing the Minority
Shares owned by BNP Paribas to represent less than 10% of the Bank's voting
share capital, (iii) a transaction is approved by the Bank's board of directors
which would cause the Bank to cease to join in filing consolidated tax returns
with BW, (iv) as a result of any new law, rule or regulation, or any
modification, or as a result of the construction of any law, rule or regulation
by a relevant authority, whether such law, rule, regulation or authority be
French, United States, European, foreign, state, provincial or local, it becomes
illegal or impractical for the parties hereto to maintain their participation in
this Agreement, or (v) the parties reasonably agree, after good faith
discussions, that there has been a change in applicable law, rules or
regulations (or judicial, administrative or regulatory interpretation thereof)
that, in the good faith judgment of the parties, is reasonably likely to
adversely impact the economic benefits of the transactions contemplated by this
Agreement to either party.
"AFFILIATE" as applied to any person means any other person directly or
indirectly controlling, controlled by, or under common control with that person.
For the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by", and "under common control
with"), as applied to any person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that person, whether through the ownership of voting securities or by contract
or otherwise.
"BUSINESS DAY" means any day other than a Saturday, Sunday or one on which
banks are authorized or required by law to close in New York, New York, San
Francisco, California, Honolulu, Hawaii or Paris, France.
"CLOSING" shall have the meaning set forth in Section 3.4(b).
"CLOSING DATE" means the date on which a Closing takes place.
"DISTRIBUTION" means any dividend or other distribution paid by the Bank
on all or any part of the Common Stock, whether paid in cash or property or for
other consideration (with the amount of such dividend or distribution which is
paid in a form other than cash being determined for purposes of this Agreement
to be the fair value thereof as determined in good faith by the Board of
Directors of the Bank); provided, however that "Distribution" shall not include
a pro rata dividend or distribution of shares of the Common Stock or other pro
rata adjustment that is subject to Section 6.2, or any amount received as
consideration for the purchase, redemption, or other acquisition of shares of
Common Stock by the Bank.
"FUTURE VALUE" of any payment means the amount of such payment, together
with interest on such payment, from the date of payment to the date for which
such Future Value is being computed, at a rate of 4.39%, compounded quarterly on
March 31, June 30, September 30 and December 31 of each year and calculated on
the basis of a 365 day year and the number of days actually elapsed following
the date of payment.
"INJUNCTION" means any judgment, order, injunction, ruling or decree by a
court or other governmental authority of competent jurisdiction.
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"LIEN" means any lien, pledge, mortgage, security interest, charge,
escrow, right of first refusal, encumbrance, or other claim of any kind or
character.
"ORIGINAL TRANSACTION DATE" means November 22, 2002.
1.2 Headings. The headings and subheadings in this Agreement are included
for convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
ARTICLE II
DISTRIBUTIONS
2.1 Distribution Policy. Each of BNP Paribas and BW, as the owner of a
portion of the Common Stock, shall be free to exercise the full extent of its
voting rights as it deems appropriate in its sole discretion under applicable
state law and the Bank's bylaws and articles of incorporation. Separate from the
election of directors of the Bank and all other voting powers with respect to
the Common Stock, each of BNP Paribas and BW may request the Board of Directors
of the Bank to declare dividends and to cause the Bank to make Distributions on
the Common Stock out of available earnings. Notwithstanding the foregoing, it is
expressly understood and agreed by the parties hereto that the declaration and
payment by the Bank of dividends and other Distributions on the Common Stock is
within the sole discretion of the Bank's Board of Directors, and nothing in this
Agreement shall give the parties any rights or claims against the Bank or any
member of the Board of Directors of the Bank regarding the declaration or
payment of dividends or other Distributions on the Common Stock (or any
determination not to declare and pay dividends or other Distributions).
2.2 Limitations on Distributions. Notwithstanding anything to the contrary
stated in this Article II, neither BNP Paribas nor BW shall take any action, or
cause or request any member of the Board of Directors of the Bank to take any
action, that would result in the Bank declaring, making or paying a Distribution
to the extent such Distribution would violate Sections 640 et. seq. of the
California Financial Code (or any successor provision), the Federal Deposit
Insurance Act, the rules, regulations, policies or other requirements of the
Federal Deposit Insurance Corporation, the Federal Reserve Board or the
California Department of Financial Institutions or any other applicable foreign,
federal, state or local laws, rules, regulations, policies or Injunctions or
would result in the Bank or any other banking subsidiary of BW no longer being
"well capitalized" under the rules, regulations and policies of the United
States federal banking authorities.
ARTICLE III
CALL OPTION
3.1 Call Option. Upon the terms and subject to the conditions set forth in
this Agreement, BW shall have the unconditional right (the "CALL RIGHT") to
purchase from BNP Paribas all or a portion of the Minority Shares on the Closing
Date (as defined below) at an
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aggregate price (the "CALL PRICE") for such number of Minority Shares to be
purchased equal to the product of (a) the total of (i) $800 million plus (ii)
4.39% per annum of the Original Purchase Price accruing from the Original
Transaction Date to the Closing Date (compounded quarterly, on March 31, June
30, September 30 and December 31 of each year and calculated on the basis of a
365 day year and the number of days actually elapsed since the Original
Transaction Date) minus (iii) the aggregate amount of the Future Value as of the
Closing Date of all Distributions paid on the Minority Shares from the Original
Transaction Date to the Closing Date (provided, that any Distribution with a
record date prior to the Closing Date but not yet paid by the Closing Date shall
be treated as if it was paid on the Closing Date), plus (iv) $5,000,000,
multiplied by (b) the quotient of (i) the number of Minority Shares that BW is
purchasing on such Closing Date divided by (ii) the total number of Minority
Shares subject to the Agreement on the date hereof. To the extent BW exercises
the Call Right with respect to less than all of the Minority Shares, it may
exercise the Call Right on one or more future occasions in accordance with the
terms of this Agreement (except to the extent BNP Paribas previously has
exercised its Put Right (as defined below)). Appropriate adjustments to this
formula using similar terms and conditions shall be made by the parties if any
of the Minority Shares are redeemed while Minority Shares are still held by BNP
Paribas.
3.2 Failure to Exercise Call Right. In the event that (A) BW does not
exercise its Call Right with respect to all of the Minority Shares pursuant to
the delivery to BNP Paribas of one or more Call Exercise Notices (as defined
below) on or before December 22, 2011, or (B) an event described in clauses (i),
(ii), (iii) or (iv) of the definition of Acceleration Event occurs and is
continuing or the parties hereto reach an agreement described in clause (v) of
the definition of Acceleration Event and BW does not exercise its Call Right
with respect to all of the Minority Shares pursuant to the delivery to BNP
Paribas of a Call Exercise Notice on or before the 90th day following such event
or agreement, then commencing 30 days after the last day on which BW could have
exercised its Call Right, BNP Paribas shall have the unconditional right (the
"PUT RIGHT") to require BW to purchase all of the Minority Shares then owned by
BNP Paribas at an aggregate price (the "Put Price") for such number of Minority
Shares to be purchased equal to the product of (a) the total of (i) $800 million
plus (ii) 4.39% per annum of the Original Purchase Price accruing from the
Original Transaction Date to the Closing Date (compounded quarterly on March 31,
June 30, September 30 and December 31 of each year and calculated on the basis
of a 365 day year and the number of days actually elapsed since the Original
Transaction Date) minus (iii) the aggregate amount of the Future Value as of the
Closing Date of all Distributions paid on the Minority Shares from the Original
Transaction Date to the Closing Date (provided, that any Distribution with a
record date prior to the Closing Date but not yet paid by the Closing Date shall
be treated as if it was paid on the Closing Date), plus (iv) $50,000,000,
multiplied by (b) the quotient of (i) the number of Minority Shares that BNP
Paribas has required BW to purchase on such Closing Date divided by (ii) the
total number of Minority Shares subject to the Agreement on the date hereof.
Appropriate adjustments to this formula using similar terms and conditions shall
be made by the parties if any of the Minority Shares are redeemed while Minority
Shares are still held by BNP Paribas. BNP Paribas may give notice to BW of its
intention to exercise its Put Right ("PUT EXERCISE NOTICE") beginning at the
time such Put Right shall arise and at the latest 30 days after such time (but
in no event later than February 22, 2012).
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3.3 Call Exercise Notice. BW may exercise its Call Right by giving a
notice (a "CALL EXERCISE NOTICE") to BNP Paribas of its intention to exercise
the Call Right in whole or, from time to time, in part:
(a) at any time from and including November 23 to and including
December 22 of each year from and including 2004 to and including 2011; and/or
(b) on the occurrence of an event described in clause (i), (ii),
(iii) or (iv) of the definition of Acceleration Event that is continuing, or the
parties hereto reach an agreement described in clause (v) of the definition of
Acceleration Event, at any time from and after such event or agreement to and
including the 90th day following such event or agreement (but in no event later
than December 22, 2011).
Each Call Exercise Notice shall specify the number of Minority Shares to be
purchased.
3.4 Purchase, Closing.
(a) In consideration of the sale of the Minority Shares pursuant to
Section 3.1 or 3.2, at the Closing, BW shall pay BNP Paribas the following (such
amount at such Closing, the "PURCHASE PRICE"): (A) the Call Price, in the event
BW shall have exercised its Call Right, or (B) the Put Price, in the event BNP
Paribas shall have exercised its Put Right.
(b) Subject to satisfaction or waiver of the conditions precedent
contained in this Article III, the closing (the "CLOSING,") with respect to a
particular purchase and sale of the Minority Shares pursuant to Section 3.1 or
3.2 shall take place at 10:00 a.m. San Francisco, California time at the offices
of the Bank at 0000 Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx on the following
Closing Date: (i) if BW has delivered a Call Exercise Notice pursuant to Section
3.3(a), January 7 of the year following the year in which such Call Exercise
Notice has been delivered, or (ii) if BW has delivered a Call Exercise Notice
pursuant to Section 3.3(b) or BNP Paribas has delivered a Put Exercise Notice,
the tenth Business Day following delivery of such Call Exercise Notice or Put
Exercise Notice. BNP Paribas shall designate an account or accounts to which BW
shall wire the Call Price or the Put Price, as the case may be, in accordance
with Section 3.7 (including the amount to be wired to each such account) within
five Business Days of receipt of the Call Exercise Notice or delivery of the Put
Exercise Notice.
3.5 Conditions to BW's Purchase of the Minority Shares. The purchase of
any or all of the Minority Shares by BW pursuant to this Article III is subject
to the satisfaction of the following conditions at or prior to the Closing of
such purchase, unless waived by BW in its sole discretion:
(a) BNP Paribas shall have delivered to BW each of the documents
required to be delivered by it at or prior to such Closing pursuant to this
Article III; and
(b) No Injunction shall have been issued and remain in effect
restraining or prohibiting the performance of this Agreement or the consummation
of any of the transactions contemplated herein, and the parties hereto shall
have received all necessary regulatory approvals and consents, if any, for the
consummation of the transactions contemplated herein, and any applicable waiting
periods shall have expired or been terminated.
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3.6 Conditions to BNP Paribas' Sale of the Minority Shares. The sale of
any or all of the Minority Shares by BNP Paribas pursuant to this Article III is
subject to the satisfaction of the following conditions at or prior to the
Closing of such sale, unless waived by BNP Paribas in its sole discretion:
(a) BW shall have delivered to BNP Paribas each of the documents
required to be delivered by it at or prior to such Closing pursuant to this
Article III;
(b) BW shall have paid the Purchase Price in respect of the Minority
Shares to be transferred as provided herein to the account or accounts
designated by BNP Paribas; and
(c) No Injunction shall have been issued by any court or
governmental body and remain in effect restraining or prohibiting the
performance of this Agreement or the consummation of any of the transactions
contemplated herein, and the parties hereto shall have received all necessary
regulatory approvals and consents, if any, for the consummation of the
transactions contemplated herein, and any applicable waiting periods shall have
expired or been terminated.
3.7 Delivery and Payment. At each Closing:
(a) BNP Paribas shall deliver to BW (i) certificates for the
appropriate number of Minority Shares duly endorsed in blank or accompanied by
appropriate stock powers, in either case signed exactly as the name of the
registered holder appears on the certificates, with the signatures on such
certificates or stock powers guaranteed by a financial institution that is a
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program, and (ii) all certificates and other instruments or documents
contemplated under this Article III to be delivered by BNP Paribas and BW at or
prior to the Closing shall have been delivered. For the avoidance of doubt,
title to the Minority Shares shall not pass from BNP Paribas to BW until the
completion of the Closing.
(b) BW shall pay the Purchase Price with respect to the Minority
Shares transferred on a particular Closing Date to BNP Paribas by wire transfer
of immediately available funds to the account or accounts previously designated
by BNP Paribas.
3.8 Further Assurances. At and after each Closing, BNP Paribas will cause
its officers to execute and deliver, in the name and on behalf of BNP Paribas,
any deeds, bills of sale, assignments or assurances, letters of transmittal,
stock powers, guarantees or other documents reasonably requested by BW and in
such form as BNP Paribas shall reasonably agree (such agreement not to be
unreasonably withheld or delayed) in order to effect the delivery of the
Minority Shares to, and the vesting of title thereto in, BW.
3.9 Specific Performance. Each of BW and BNP Paribas agrees that the right
and obligation of BW to purchase the Minority Shares, and the right and
obligation of BNP Paribas to transfer the Minority Shares to BW, pursuant to
this Article III shall (subject to applicable law) be subject to specific
performance, that the options described in Sections 3.1 and 3.2 may be settled
only by physical delivery of certificates representing the Minority Shares and,
for the avoidance of doubt, that BNP Paribas shall not be entitled to satisfy
its obligations, or exercise its
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rights, under this Agreement by paying BW the excess of the value of the
Minority Shares over the Purchase Price. Both BW and BNP Paribas acknowledge and
agree that damages shall not be an adequate remedy for breach of BNP Paribas'
obligation to transfer the Minority Shares to BW pursuant to Section 3.1 or BW's
obligation to purchase the Minority Shares from BNP Paribas pursuant to Section
3.2. Accordingly, except as provided in Section 6.9 hereof, during the term of
this agreement, BNP Paribas shall not transfer the Minority Shares without the
prior consent of BW.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of BNP Paribas. BNP Paribas represents
and warrants to BW as follows:
(a) BNP Paribas is a societe anonyme duly organized and validly
existing under the laws of the Republic of France and has all requisite
corporate power and authority to enter into this Agreement and to be bound by
and carry out the transactions contemplated herein;
(b) this Agreement has been duly authorized, executed and delivered
by BNP Paribas and constitutes the legal, valid and binding obligation of BNP
Paribas, enforceable against it in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity);
(c) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein will: (i) conflict with,
result in any violation of, require any consent under, or constitute a default
(whether with notice or lapse of time or both) under, BNP Paribas' constituent
documents or any mortgage, bond, indenture, agreement, instrument or obligation
to which BNP Paribas is a party or by which BNP Paribas or the Minority Shares
are bound or subject; (ii) violate any Injunction that is binding on BNP
Paribas; (iii) constitute a violation by BNP Paribas of any law, rule or
regulation of any jurisdiction; or (iv) result in any obligation on the part of
BW or any other person or entity to purchase any other securities (other than
the Minority Shares);
(d) at each Closing, BNP Paribas shall own, hold of record and have
sole voting and dispositive power with respect to the Minority Shares to be
transferred and shall have good and marketable title to such shares, free and
clear of any Liens, except for the restrictions set forth in this Agreement; and
(e) no consent, approval, waiver, order or authorization of, or
registration, declaration or filing with, any governmental authority or other
person is required (other than those previously obtained) in connection with the
execution and delivery of this Agreement by BNP Paribas or the consummation by
BNP Paribas of the transactions contemplated herein.
4.2 Representations and Warranties of BW. BW represents and warrants to
BNP Paribas as follows:
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(a) BW is a corporation duly organized and validly existing under
the laws of the State of Delaware and has all requisite corporate power and
authority to enter into this Agreement and to be bound by and carry out the
transactions contemplated herein;
(b) this Agreement has been duly authorized, executed and delivered
by BW and constitutes the legal, valid and binding obligation of BW, enforceable
against it in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity);
(c) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein will: (i) conflict with,
result in any violation of, require any consent under, or constitute a default
(whether with notice or lapse of time or both) under, BW's certificate of
incorporation or bylaws or any mortgage, bond, indenture, agreement, instrument
or obligation to which BW is a party or by which BW or the Minority Shares are
bound or subject; (ii) violate any Injunction, that is binding on BW; or (iii)
constitute a violation by BW of any law, rule or regulation of any jurisdiction;
and
(d) no consent, approval, waiver, order or authorization of, or
registration, declaration or filing with, any governmental authority or other
person is required (other than those previously obtained) in connection with the
execution and delivery of this Agreement by BW or the consummation by BW of the
transactions contemplated herein.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to the Parties' Obligations Under this Agreement. The
respective rights and obligations of each of the parties under this Agreement
and the other transactions contemplated hereby shall be subject to the execution
of the Stock Purchase Agreement between the parties and the closing of the
transactions contemplated thereunder, including the sale of the Minority Shares
by BW to BNP Paribas and the purchase of the Minority Shares from BW by BNP
Paribas.
ARTICLE VI
MISCELLANEOUS
6.1 Entire Agreement. This Agreement and the Stock Purchase Agreement set
forth the entire agreement between the parties hereto with respect to the
transactions contemplated herein and supersede all prior agreements or
understandings among the parties with respect to the subject hereof.
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6.2 Adjustment; Antidilution. In the event that the outstanding number of
shares of Common Stock changes or shares of a different class are issued by the
Bank, as a result of a stock split, reverse stock split, stock dividend,
subdivision, reclassification, combination, exchange, recapitalization, merger
or other similar transaction during the term of this Agreement, the term "Common
Stock," shall refer to all of the shares of Common Stock, or to the other
applicable securities, as appropriate, and the amount of cash received or
receivable as a result of the ownership of such Common Stock, or other
applicable securities, as the case may be, at any time after the date hereof,
and any other number, amount or price that is based upon the number of shares of
such Common Stock, or other applicable securities, as of the date hereof shall
be appropriately adjusted.
6.3 Notices. All notices, requests and other communications to any party
hereunder shall be in writing and sufficient if delivered personally or sent by
telecopy (with confirmation of receipt), by overnight delivery or courier
service, or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to BNP Paribas:
BNP Paribas
0 xxx x'Xxxxx
00000 Xxxxx, XXXXXX
Telecopy: + 33 1 40 14 93 96
Attention: M. Xxxxxxxx Xxxxxxxxx
If to BW:
BancWest Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel and Secretary
or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
6.4 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute one agreement.
6.5 Survival. Unless otherwise expressly provided herein, all
representations and warranties, agreements and covenants contained in this
Agreement, or in any document delivered pursuant to this Agreement or in
connection with this Agreement, shall survive the Closings and shall remain in
full force and effect.
6.6 Expenses. Each of the parties hereto shall bear its own costs and
expenses in connection with the negotiation, execution and delivery of this
Agreement and the
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consummation of the transactions contemplated herein. BW shall pay any and all
stamp and other documentary taxes payable or deemed to be payable in connection
with the transfer of the Minority Shares and agrees to hold BNP Paribas harmless
from and against all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes.
6.7 Benefits of Agreement and Successors. All of the terms and provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement is for the
sole benefit of the parties and not for the benefit of any third party;
provided, however, that the provisions of the last sentence of Section 2.1 and
the provisions of Section 2.2 hereof shall inure to the benefit of and be
enforceable by the Bank and the members of the Board of Directors of the Bank.
6.8 Amendments and Waivers. No modification, amendment, or waiver of any
provision of, or consent required by, this Agreement, nor any consent to any
departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto; provided, however, that the parties may at any time renegotiate
the terms of this Agreement. Any such renegotiation, modification, amendment,
waiver or consent shall be effective only in the specific instance and for the
purpose for which given.
6.9 Assignment; Transfer of Shares. Except as set forth in this Section
6.9, this Agreement and the rights and obligations hereunder shall not be
assignable or transferable by any party hereto without the prior written consent
of the other party. BW may transfer its rights under Article III to any party,
whether or not a direct or indirect subsidiary of BNP Paribas, or otherwise
related to BW, so long as BW provides prior written notice of such transfers to
BNP Paribas. No such transfer shall relieve BW of its obligations under this
Agreement. BNP Paribas may transfer all or any of the Minority Shares to any of
its Affiliates so long as BNP Paribas provides prior written notice of such
transfers to BW and each such transferee agrees, in writing prior to such
transfer, to comply with the terms and conditions of this Agreement with respect
to the shares transferred to it. No such transfer shall relieve BNP Paribas of
its obligations under this Agreement.
6.10 Enforceability. It is the desire and intent of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in the jurisdiction in
which enforcement is sought. Accordingly, if any provision of this Agreement
shall be adjudicated to be invalid or unenforceable, such provision shall be
deemed amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made.
6.11 Governing Law. The Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely in such state.
6.12 Consent to Jurisdiction, Waiver of Jury Trial. Each of the parties
hereto hereby irrevocably and unconditionally consents to the jurisdiction of
any federal or state court of New York sitting in New York City and irrevocably
agrees that all actions or proceedings arising out of or relating to this
Agreement or the transactions contemplated herein shall be litigated
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exclusively in such courts. Each of BW and BNP Paribas agrees not to commence
any legal proceeding related hereto except in such court. Each of BW and BNP
Paribas irrevocably waives any objection which it may now or hereafter have to
the laying of the venue of any such proceeding in any such court and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceedings bought in any such
court has been brought in an inconvenient forum. Each of BW and BNP Paribas
irrevocably waives any right it may have to a trial by jury in any such action,
suit or proceeding.
6.13 Legal Holidays. In the event that any event, action or occurrence set
forth herein would otherwise be on a date that is not a Business Day, then the
date of such event, action or occurrence for purposes of this Agreement shall be
the next succeeding Business Day.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed and delivered as of the date first set forth above.
BNP PARIBAS S.A.
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
BANCWEST CORPORATION
By: /s/ XXXXXX X. XXXX, XX.
-------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Chairman & CEO
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