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STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of May 28, 1998 (the "Agreement"),
between the undersigned holder (the "Holder") of shares of the common stock, $5
par value (the "Company Common Stock"), of First Hawaiian, Inc., a Delaware
corporation (the "Company"), and Banque Nationale de Paris, a societe anonyme or
limited liability banking corporation organized under the laws of the Republic
of France ("BNP").
RECITALS
The Company and BancWest Corporation, a California corporation and a
wholly-owned subsidiary of BNP ("BancWest"), propose to enter into an Agreement
and Plan of Merger dated as of the date hereof (the "Merger Agreement";
capitalized terms not otherwise defined herein being used herein as therein
defined), pursuant to which BancWest would be merged (the "Merger") with and
into the Company, and each outstanding share of common stock of BancWest would
be converted into the right to receive shares of Class A Common Stock, par value
$1 per share, of the Company;
As a condition to entering into the Merger Agreement, BNP has
requested the Holder to agree, and Holder has agreed, to enter into this
Agreement;
Prior to the date hereof, BNP and the Holder had no agreement,
arrangement or understanding (as defined in Section 203 of the Delaware General
Corporation Law (the "DGCL")) for the purpose of acquiring, holding, voting or
disposing of shares of Company Common Stock; and
In consideration of the agreements contained herein, prior to the
date hereof, and prior to the time at and date on which BNP became an
"interested stockholder" for purposes of Section 203 of the DGCL, the board of
the directors of the Company has approved the agreement of the Holder to vote as
provided in Section 2 of this Agreement and not to transfer shares of Company
Common Stock as provided in Section 4(b) of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of the Holder. The Holder
represents and warrants to BNP as follows:
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(a) Ownership of Securities. The Holder is the record owner of the
number of shares of Company Common Stock (the "Existing Securities") (together
with any shares of Company Common Stock hereafter acquired by the Holder, the
"Subject Securities") set forth on the signature page to this Agreement. The
Holder does not own any securities of the Company on the date hereof other than
the Existing Securities. The Holder has sole voting power (and the power to act
by written consent) and sole power to issue instructions with respect to the
voting of the Existing Securities and sole power of disposition of the Existing
Securities and, on the record date for, and on the date of the stockholders
meeting of the Company held to vote on adoption of the Merger Agreement, will
have sole voting power (and the power to act by written consent) and sole power
to issue instructions with respect to the voting of all of the Subject
Securities and sole power of disposition of the Subject Securities.
(b) Power; Binding Agreement. The Holder has full power and
authority to enter into and perform all of its obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by the Holder
and constitutes a valid and binding agreement of the Holder, enforceable against
the Holder in accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority or any
other person or entity is necessary for the execution of this Agreement by the
Holder and the consummation by the Holder of the transactions contemplated
hereby, and neither the execution and delivery of this Agreement by the Holder
nor the consummation by the Holder of the transactions contemplated hereby nor
compliance by such Holder with any of the provisions hereof will conflict with
or result in any breach of any applicable organizational documents or
instruments applicable to such Holder, result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which such Holder is a party or by which the Holder's Subject Securities
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Holder as of the date hereof.
(d) No Liens. The Existing Securities are now and, at all times
during the term hereof, the Subject Securities will be held by the Holder, or by
a nominee or custodian for the benefit of the Holder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any encumbrances arising hereunder.
2. Agreement to Vote Shares. At every meeting of the stockholders of
the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, the Holder
irrevocably agrees that it shall vote all the Subject Securities that it
beneficially owns on the record date of any such vote or action: (i) in favor of
the Merger, the adoption of the Merger Agreement and the approval of the terms
thereof
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(with such modifications as the parties thereto may make (except for
modifications that would adversely affect the Holder)) and each of the other
transactions contemplated by the Merger Agreement and (ii) against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (1) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; (2) a sale,
lease or transfer of all or substantially all of the assets of the Company or a
reorganization, recapitalization, dissolution or liquidation of the Company; or
(3) (a) any change in the majority of the board of directors of the Company; (b)
any material amendment of the Company's Certificate of Incorporation; (c) any
other material change in the Company's corporate structure or business; or (d)
any other action; which, in the case of each of the matters referred to in
clauses (a), (b), (c) or (d) above, is intended, or could reasonably be
expected, to materially impede, interfere with, delay, postpone or adversely
affect the consummation of the Merger on the terms set forth in the Merger
Agreement or the consummation of the other transactions contemplated there by or
by this Agreement.
3. Covenants of the Holder. The Holder hereby agrees and covenants
that:
(a) No Solicitation. The Holder shall not, directly or indirectly,
solicit (including by way of furnishing information) or respond to any inquiries
or the making of any proposal by any person or entity (other than BNP or any
affiliate of BNP) with respect to the Company that constitutes or could
reasonably be expected to lead to a Takeover Proposal (other than the
transactions contemplated by the Merger Agreement). The Holder will immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore by or on its behalf with
respect to any of the foregoing.
(b) Restriction on Transfer, Proxies and Noninterference. The Holder
shall not, directly or indirectly: (i) except pursuant to the terms of the
Merger Agreement offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Subject Securities, unless the transferee or pledgee of such
Subject Securities agrees in writing in a form reasonably satisfactory to BNP
(with a copy furnished to BNP) to be bound by all of the provisions of this
Agreement with respect to such transferred or pledged Subject Securities; (ii)
except as contemplated hereby, grant any proxies or powers of attorney, deposit
any such Subject Securities into a voting trust or enter into a voting agreement
with respect to any of the Subject Securities; or (iii) take any action that
would make any representation or warranty contained herein untrue or incorrect
or have the effect of preventing or disabling the Holder from performing its
obligations under this Agreement.
(c) Cooperation. The Holder shall use all reasonable efforts to
cooperate with BNP to effect the transactions contemplated by the Merger
Agreement and provide any information reasonably requested by BNP in connection
with any regulatory application or filing made or approval sought for such
transactions.
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4. Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not prevent
any of the Holder's designees now or hereafter serving on the Company's Board of
Directors (including, without limitation, each of the trustees of the Holder
whose name appears on the signature page hereto) from taking any action, subject
to applicable provisions of the Merger Agreement, while acting in such
designee's capacity as a director of the Company. BNP acknowledges and agrees
that each such trustee of the Holder who has signed this Agreement on behalf of
the Holder does so solely in his capacity as trustee of the Holder, as a
stockholder of the Company, and not in his capacity as a director, officer or
employee of the Company, and that such action on behalf of the Holder does not
limit or restrict his ability to vote, or otherwise act, in his capacity as a
director, officer or employee of the Company. Notwithstanding the foregoing,
this Agreement shall be and shall remain binding upon the Holder irrespective of
any action taken by any such trustee in his capacity as a director of the
Company.
5. Assignment; Benefits. This Agreement may not be assigned by any
party hereto without the prior written consent of the other party. This
Agreement shall be binding upon, and shall inure to the benefit of, the Holder,
BNP and their respective successors and permitted assigns.
6. Death or Incapacity of Trustees. The death or incapacity of any
trustee shall not revoke or affect in any respect the validity or enforceability
of this Agreement.
7. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier or sent by
electronic transmission, with confirmation received, to the telecopy numbers
specified below:
If to the Holder:
The Estate of Xxxxxx Xxxxx Xxxxx
First Hawaiian Center
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Executive Secretary
With copies to:
Milbank, Tweed, Xxxxxx & XxXxx
Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. X'Xxxxxx, Esq.
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and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxxxxxxx, Esq.
If to BNP:
Banque Nationale de Paris
Affaires Juridiques et Fiscales
Affaires Juridiques Internationales
0, Xxxxxxxxx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: (011) (33) (1) 40.14.86.30
Telephone No.: (011) (33) (1) 40.14.26.78
Attention: General Counsel
With copies to:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
and
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
8. Notice of Litigation. The Holder shall promptly notify BNP of any
pending or, to its knowledge, threatened action or proceeding challenging the
validity or enforceability of this Agreement.
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9. Specific Performance. The parties hereto agree that irreparable
harm would occur in the event that any of the provisions of this Agreement were
not performed in accordance with its specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
10. Amendment. This Agreement may not be amended or modified, except
by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by either party hereto, except by an
instrument in writing signed by or on behalf of the party granting such waiver.
11. Governing Law; Consent to Jurisdiction. (i) This Agreement 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. The Holder
hereby irrevocably and unconditionally consents to 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. The Holder 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 11, 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, xxxxxx 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.
(ii) Each of the parties 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 airmail, 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. BNP 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
BNP's consent to service contained in this Section 11 is solely for the purpose
referred to in this Section 11
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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.
12. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
13. Limited Liability of Trustees. Notwithstanding any other
provision of this Agreement, none of the trustees nor any other person holding a
contingent or other beneficial interest in Holder shall have any personal
liability for performance of any obligation of Holder under this Agreement.
14. Termination. This Agreement shall terminate upon the earlier of
(i) the consummation of the Merger and (ii) the termination of the Merger
Agreement pursuant to its terms. The date and time at which this Agreement is
terminated in accordance with this Section 15 is referred to herein as the
"Termination Date." Upon any termination of this Agreement, this Agreement shall
thereupon become void and of no further force and effect, and there shall be no
liability in respect of this Agreement or of any transactions contemplated
hereby by the Merger Agreement on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's wilful breach of this
Agreement; and provided further that nothing herein shall limit, restrict,
impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under other contract or agreement, including, without
limitation, the Merger Agreement.
15. Expenses. Each party shall pay its own expenses in connection
with this Agreement.
16. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability and shall not
render invalid or unenforceable the remaining terms and provisions of this
Agreement or affect the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
BANQUE NATIONALE DE PARIS
By: /s/ Xxxx Xxxxxxx
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Title: Directeur General Delegue
THE WILL AND ESTATE OF X.X. XXXXX
Shares of Company Common Stock: 7,900,000
By: /s/ Xxxxx X. Xxxx
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Trustee
By: /s/ Xxxx X. Xxxxxxx
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Trustee
By: /s/ Xxxx Xxxxxx Xxxxxx
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Trustee
