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EXHIBIT 4(II)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 1, 1998 (this
"Agreement"), between 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").
W I T N E S S E T H :
WHEREAS, the Company and BancWest Corporation, a corporation organized
under the laws of the State of California and a wholly owned subsidiary of BNP
("BancWest"), have entered into a Merger Agreement, dated as of May 28, 1998
(the "Merger Agreement"), pursuant to which and subject to the terms and
conditions thereof, among other things, BancWest will merge with and into the
Company (the "Merger"), and all of the outstanding shares of common stock,
without par value, of BancWest (the "BancWest Common") will be converted into
shares of Class A Common Stock (as defined herein); and
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and BNP are entering into a Standstill and Governance Agreement,
dated as of the date hereof (the "Standstill Agreement"); and
WHEREAS, the Company and BNP are entering into this Agreement to establish
certain arrangements with respect to the shares of Class A Common Stock into
which the BancWest Common held by BNP will be converted in the Merger.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein:
"associate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act.
"Business Day" means any day excluding Saturday, Sunday or other day
on which banks are required or authorized by law to be closed in the
Honolulu, Hawaii, San Francisco, California or Paris, France.
"Class A Common Stock" shall mean the Class A Common Stock, par value
$1.00 per share, of the Company.
"Company Common Shares" shall mean, collectively, the Class A Common
Stock and the Company Common Stock.
"Company Common Stock" shall mean Common Stock, par value $1.00 per
share, of the Company (other than the Class A Common Stock).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended and any successor thereto, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to
time.
"Holder" shall mean any party hereto (other than the Company) and
their permitted successors and assigns, and any Person who becomes a party
hereto.
"Holders' Representative" shall mean BNP, as representative of the
Holders.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any Group comprised of two or more of the
foregoing.
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"Registrable Securities" shall mean (x) the shares of Company Common
Stock issuable upon the transfer of the shares of Class A Common Stock that
may be owned from time to time by BNP and (y) any securities which have
been or may be issued or distributed in respect of Class A Common Stock
issued to BNP in the Merger or any other shares covered by clause (x) by
way of stock dividend, stock split or other distribution, recapitalization,
or reclassification, exchange offer, merger, consolidation or similar
transaction. As to any particular Registrable Securities, once issued such
Securities shall cease to be Registrable Securities when (i) such
securities shall have been sold pursuant to Rule 144 (or any successor
provision) under the Securities Act, (ii) a registration statement with
respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in
accordance with the plan of distribution set forth in such registration
statement, (iii) such securities shall have been otherwise transferred
(except pursuant to Section 3.2(c)(iii) or (vi) of the Standstill
Agreement), new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company, and subsequent
disposition of them shall not require registration or qualification of them
under the Securities Act or any state securities or blue sky law then in
force or (iv) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and securities exchange or NASD registration and
filing fees, (ii) all fees and expenses of complying with securities or
blue sky laws (including reasonable fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the
Registrable Securities and, if the Registrable Securities are debt
securities, in connection with a determination of their eligibility for
investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority of such Registrable Securities being
sold may designate to the extent provided in Section 4(d)), (iii) all
printing, duplicating, word processing, telephone, facsimile, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with
the listing of the Registrable Securities on any securities exchange or
quotation of the Registrable Securities on any inter-dealer quotation
system pursuant to Section 4(h), (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any "cold comfort" letters required by or incident to such
performance and compliance, (vi) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, and (vii) if the
Registrable Securities are preferred stock or debt securities, all
applicable rating agency fees with respect thereto; provided, that
Registration Expenses shall exclude all underwriting discounts and
commissions, selling or placement agent or broker fees and commissions,
transfer taxes, if any, and the fees and disbursements of counsel for the
Holders.
"SEC" shall mean the Securities and Exchange Commission, or any
successor governmental body or agency.
"Securities Act" shall mean the Securities Act of 1933, as amended and
any successor thereto, and the rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. Subject to the last sentence
of this Section 2(a) and Article III of the Standstill Agreement, each time the
Company proposes to register shares of Company Common Stock under the Securities
Act (other than a registration on Form S-4 or S-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account, pursuant to a registration statement on which it is permissible to
register Registrable Securities for sale to the public under the Securities Act,
it will give reasonably prompt written notice to each Holder of its intention to
do so and of such Holder's rights under this Section 2. Upon the written request
of any Holder made in good faith on behalf of such Holder and made within 15
days after the receipt of any such notice (which request shall specify the
number and type of Registrable Securities intended to be disposed of by such
Holder), the Company will use its reasonable best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by each such Holder; provided that (i)
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration
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statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed registration or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each Holder who has requested to include
Registrable Securities in such registration and in the case of a determination
not to register, thereupon shall be relieved, subject to paragraph (b) below, of
its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith) and in the case of a determination to delay registering,
the Company may delay registering the Registrable Securities for the same period
as the delay in registering such other securities, and (ii) if such registration
involves an underwritten offering by the Company, the Holders requesting to be
included in the Company's registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company, with such differences, including any with respect to
indemnification and contribution, as may be customary or appropriate in combined
primary and secondary offerings. Each Holder shall be permitted to withdraw all
or part of such Holder's Registrable Securities from a registration pursuant to
this Section 2(a) at any time prior to the effective date thereof; provided,
that the Company shall be entitled to reimbursement from a Holder of withdrawn
Registrable Securities for any registration fees incurred by the Company in
connection with the registration of such Registrable Securities. In order to
assure the efficient operation of this Section 2(a), BNP may, upon transfer of
any shares of Class A Common Stock in accordance with the provisions of the
Standstill Agreement, enter into appropriate agreements with any transferee who
would become a Holder to limit such transferee's rights to cause the Company to
register securities pursuant to this Section 2(a) without the consent of the
Holders' Representative; provided that BNP shall deliver a copy of any such
agreement to the Company. The Holders shall not have any rights under this
Section 2(a) if, during the twelve-month period preceding the date on which
notice would be required to be given by the Company pursuant to the first
sentence of this paragraph (a), the number of registrations requested by the
Holders pursuant to this Section 2(a), when combined with the number of
registrations registered pursuant to Section 3(a), would exceed three.
(b) Conversion to Demand Registration. In the event that the Company shall
determine for any reason not to proceed with a proposed registration as
described in paragraph (a) above, one or more Holders shall be permitted to
request that the Company continue such registration pursuant to, and subject to
all of the terms and conditions of, Section 3 (including, without limitation,
the limitations on the number, frequency, amount of securities to be requested
to be registered and the ability of the Company to delay registration or suspend
sales contained in Sections 3(a) and 3(g)). Any such request shall be made by
written notice delivered within two Business Days of receipt by such Holders of
the notice from the Company to the Holders of the Company's determination not to
proceed with the registration and shall count as a demand under Section 3(a).
(c) Expenses. The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 2.
(d) Priority. If a registration pursuant to this Section 2 involves an
underwritten offering by the Company (as described in Section 2(a)(ii)) and the
managing underwriter with respect to such offering advises the Company and the
Holders electing to participate in such offering in writing that, in its
opinion, the number of securities requested to be included in such registration
exceeds the number of securities which can be sold in such offering without
being likely to have an adverse effect on the offering of securities as
contemplated by the Company (including the price at which the Company proposes
to sell such securities), then the Company will include in such registration (i)
if the registration is a primary registration on behalf of the Company, (x)
first, all securities proposed to be sold by the Company, and (y) second, the
Registrable Securities requested to be included in such registration by the
Holders and any other Person requested to be included in such registration, pro
rata in accordance with the number of Registrable Securities proposed to be
included by each Holder and the number of securities proposed to be included by
such other Person, respectively, and (ii) if the registration is a secondary
registration on behalf of a Person other than the Company or a Holder of
Registrable Securities, (x) first, all the securities proposed to be sold by
such other Person and (y) second, the number of securities the Company proposes
to sell for its own account and the number of Registrable Securities which the
Holders have requested to be included in such registration
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pursuant to this Section 2, pro rata in accordance with the combined number of
securities proposed to be registered by the Company and the number of
Registrable Securities requested to be included, respectively.
(e) Custody Agreement and Power of Attorney. Upon the Company's request,
the Holders' Representative will execute and deliver a customary custody
agreement and power of attorney in form and substance reasonably satisfactory to
the Company with respect to the Registrable Securities to be registered pursuant
to this Section 2 (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Holders will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares or other units of Registrable Securities (duly endorsed in blank by the
registered owner or owners thereof or accompanied by duly executed stock powers
in blank) and irrevocably appoint said custodian and attorney-in-fact as such
Holder's agent and attorney-in-fact with full power and authority to act under
the Custody Agreement and Power of Attorney on behalf of such Holder with
respect to the matters specified therein.
3. Registration on Demand.
(a) Right to Demand Registration. (i) Subject to Article III of the
Standstill Agreement, upon the written request of one or more Holders requesting
that the Company effect the registration under the Securities Act of all or part
of such Holders' Registrable Securities (constituting in the aggregate at least
2% but no more than 25% of the total number of Company Common Shares or other
Registrable Securities outstanding at the date of such request or such lesser
number as the managing underwriter, if any, of the offering may determine is the
maximum number of shares that may be offered without adversely affecting the
trading market of the Company Common Stock, as provided in paragraph (f) below)
and specifying the intended method of disposition thereof, the Company thereupon
will, as expeditiously as possible, use its reasonable best efforts to effect
the registration under the Securities Act of the Registrable Securities which
the Company has been so requested to register by such Holder, provided that the
Company shall be obligated to register Registrable Securities pursuant to this
Section 3(a) on only five occasions and no more than two demand registrations
may be requested in any twelve-month period, and provided further that the
Company shall not be obligated to effect more than three registrations pursuant
to this Section 3(a) and Section 2(a) in any twelve-month period. In order to
assure the efficient operation of this Section 3(a), BNP may, upon transfer of
any shares of Class A Common Stock in accordance with the provisions of the
Standstill Agreement, enter into appropriate agreements with any transferee who
would become a Holder to limit such transferee's rights to cause the Company to
register securities pursuant to this Section 3(a) without the consent of the
Holders' Representative; provided that BNP shall deliver a copy of such
agreement to the Company.
(ii) Promptly upon receipt of any request for a demand registration
pursuant to paragraph (a)(i) above (but in no event more than five Business Days
thereafter), the Company shall serve written notice of any such request to all
other Holders, and the Company shall include in such registration all
Registrable Securities of any Holder with respect to which the Company has
received written requests for inclusion therein within 30 Business Days after
such notice has been given pursuant to Section 6(f). All requests made pursuant
to this Section 4(a)(ii) shall specify the kind and aggregate amount of
Registrable Securities to be registered and the intended method of distribution
of such securities.
(b) Registration Statement Form. Registration statements filed pursuant to
this Section 3 shall be on such form of the SEC as shall be selected by the
Company, and as shall permit the disposition of the subject Registrable
Securities in accordance with the intended methods of disposition specified by
the Holders.
(c) Expenses. The Company will pay all Registration Expenses in connection
with the registrations of Registrable Securities pursuant to this Section 3.
(d) Effective Registration Statement. A registration requested pursuant to
this Section 3 will not be deemed to have been effected unless it has become
effective; provided, that if, within 90 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is (i)
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court or (ii) the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
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such registration are not satisfied by reason of a wrongful act,
misrepresentation or breach of the applicable underwriting agreement by the
Company, such registration will be deemed not to have been effected.
(e) Selection of Underwriters. If a requested registration pursuant to
this Section 3 involves an underwritten offering, the Holders of a majority of
the Registrable Securities which the Company has been requested to register in
such registration shall have the right to select in good faith the investment
banker or bankers and managers to administer the offering; provided, however,
that such investment banker or bankers and managers shall be reasonably
satisfactory to the Company.
(f) Priority. If a requested registration pursuant to this Section 3
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Company which are
not Registrable Securities) would jeopardize the success of the offering, the
Company will include in such registration only the Registrable Securities
requested to be included in such registration. In the event that the number of
Registrable Securities requested to be included in such registration exceeds the
number which, in the opinion of such managing underwriter, can be sold, the
number of securities of each class of such Registrable Securities to be included
in such registration shall be limited to the number which, based on the opinion
of the managing underwriter, can be sold without jeopardizing the success of the
offering, pro rata in accordance with the number of Registrable Securities
requested to be included by each Holder. In the event that the number of
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold
without jeopardizing the success of the offering, the Company may include in
such registration the securities the Company proposes to sell up to the number
of securities that, in the opinion of the managing underwriter, can be sold.
(g) Certain Delay Rights. Notwithstanding any other provision of this
Agreement to the contrary, if at any time (i) while a registration statement is
effective or (ii) before a registration statement has been filed pursuant to
this Section 3, the sale of Registrable Securities covered by such registration
statement or the disclosure of information therein or in any related prospectus
or prospectus supplement would in the reasonable good faith judgment of a
majority of the entire Board of Directors of the Company (including a majority
of the Independent Directors (as defined in the Standstill Agreement))
materially interfere with or materially and adversely affect any pending or
proposed acquisition, merger, recapitalization, consolidation, reorganization,
financing or other material event or transaction, or negotiations, discussions
or pending proposals with respect thereto, and would thus not be in the best
interests of the stockholders of the Company or materially interfere with a
pending share repurchase program (a "Disadvantageous Condition"), the Company
may, as applicable, (i) defer filing such registration statement pursuant to
Section 3(a) of this Agreement or (ii) suspend sales of shares by any Holder
until such Disadvantageous Condition no longer exists (notice of which the
Company shall promptly deliver to the Holders' Representative); provided, that
any delay by the Company pursuant to this Section 3(g) may not exceed (A) 60
consecutive days or (B) 120 days in any twelve-month period. With respect to
each Holder, upon the receipt of any such notice of a Disadvantageous Condition,
such Holder shall, as applicable (i) forthwith discontinue use of the prospectus
and any prospectus supplement under such Registration Statement and suspend
sales of Registrable Securities until such Disadvantageous Condition no longer
exists, as advised by the Company to the Holders' Representative (which notice
shall be given promptly following such time as the Disadvantageous Condition no
longer exists), and (ii) if so directed by the Company, deliver to the Company
all copies, other than permanent file copies then in such Holder's possession,
of the prospectus and prospectus supplements then covering such Registrable
Securities at the time of receipt of such notice.
4. Registration Procedures. If and whenever the Company is required to use
its reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:
(a) prepare and file as promptly as practicable (but in no event later
than 30 days after the earlier of (i) the date that all Holders to whom
notice has been given pursuant to Section 4(a)(ii) have responded to such
notice and (ii) the date that the time period to receive requests under
Section 4(a)(ii) has expired) with the SEC a registration statement with
respect to such Registrable Securities and use its
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reasonable best efforts to cause such registration statement to become
effective; provided, that the Company may in its sole discretion
discontinue any registration of its securities which is being effected
pursuant to Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for the shorter of a period of (i) 90
days or (ii) until the distribution pursuant to such registration statement
is completed, and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller thereof set forth in such registration statement;
provided, that before filing a registration statement pursuant to Section 3
(or Section 2 if it mentions any Holder) or any prospectus or any
amendments or supplements thereto naming any Holder, the Company will
furnish to the Holders' Representative, the underwriters (if any) and their
respective counsel copies of all documents proposed to be filed and will
provide the Holders' Representative, the underwriters (if any) and their
respective counsel the opportunity to comment thereon;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus and prospectus supplement, as
applicable), in conformity with the requirements of the Securities Act, and
such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities by such seller,
but only while the Company shall be required under the provisions hereof to
cause such registration statement to remain current;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller or
managing underwriter shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable
each seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, except that the Company shall
not for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction where, but for the requirements
of this Section 4(d), it would not be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the sellers to consummate the disposition of such
Registrable Securities;
(f) promptly notify the sellers of Registrable Securities and the
managing underwriter or underwriters, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 4(b), of the Company's
becoming aware that the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing or, if for any other reason it shall be necessary during such
time period to amend or supplement the registration statement or prospectus
in order to comply with the Securities Act, and at the request of such
seller or managing underwriter promptly prepare and furnish to such seller
or managing underwriter a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall 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 not misleading in the light of the circumstances then
existing;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable (but not more than 15 months)
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after the effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder;
(h) if such Registrable Securities are shares of Company Common Stock,
use its reasonable best efforts to cause all such Registrable Securities
(or, in the case of Registrable Securities that are convertible into or
exercisable for shares of Company Common Stock, such underlying shares of
Company Common Stock) to be listed on any securities exchange on which
Company Common Stock is then listed, if such Registrable Securities are not
already so listed and if such listing is then permitted under the rules of
such exchange and, to use its reasonable best efforts to cause any other
Registrable Securities, if not already so listed or quoted, to be listed on
any securities exchange or quoted on any inter-dealer quotation system on
which securities of the same class or type are then so listed or quoted;
(i) enter into and perform its obligations under such customary
agreements (including an underwriting agreement in customary form for
underwriting agreements (including indemnities no less favorable than those
set forth in Section 5(a)) with respect to secondary distributions at such
time) as the sellers of a majority of such Registrable Securities may
reasonably request in connection with the disposition of such Registrable
Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of
the type customarily covered by "cold comfort" letters as the sellers of a
majority of such Registrable Securities or the managing underwriter shall
reasonably request; and
(k) make available for inspection by representatives of the sellers of
the Registrable Securities to be sold in such registration, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by such seller or any such underwriter, such financial and other
records, corporate documents and properties of the Company as are
customarily made available in connection with a "due diligence"
investigation for an underwritten secondary offering, and cause all of the
Company's (and its subsidiaries) officers and accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement as is
customarily made available in connection with a "due diligence"
investigation for an underwritten secondary offering and make available
such officers, accountants and other employees in connection therewith;
provided, however, that (i) the sellers and the underwriters and their
respective counsel, accountants and other agents shall have entered into a
confidentiality agreement customary in form and reasonably acceptable to
the Company and (ii) the sellers and the underwriters and their respective
counsel, accountants and other agents shall use their reasonable best
efforts to minimize the disruption to the Company's business and coordinate
any such investigation of the books, records and properties of the Company
and any such discussions with the Company's officers and accountants so
that all such investigations and all such discussions occur at the same
time.
(l) notify the selling Holders and the managing underwriter or
underwriters and (if requested) confirm such advice in writing, as soon as
reasonably practicable after notice thereof is received by the Company (i)
when the registration statement or any amendment thereto has been filed or
becomes effective, when the prospectus or any amendment or supplement to
the prospectus has been filed, and, to furnish such selling holders and
managing underwriter or underwriters, if any, with copies thereof, (ii) of
any written comments by the SEC or any request by the SEC or any other
federal or state governmental authority for amendments or supplements to
the registration statement or the prospectus or for additional information,
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or any order preventing or
suspending the use of any preliminary or final prospectus or the initiation
or threatening of any proceedings for such purposes, (iv) if, at any time,
the representations and warranties of the Company contemplated by paragraph
(i) above cease to be true and correct in all material respects or (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for offering
or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
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(m) make every reasonable effort to prevent or obtain the withdrawal
of any stop order or other order suspending the use of any preliminary or
final prospectus or suspending any qualification of the Registrable
Securities at the earliest possible moment;
(n) if reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters and the Holders of
a majority of the Registrable Securities being sold agree should be
included therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with
respect to the number of Registrable Securities being sold to, and the
purchase price being paid therefor by, such underwriter or underwriters and
with respect to any other terms of the offering of the Registrable
Securities to be sold in such offering; and make all required filings of
such prospectus supplement or post-effective amendment as soon as
reasonably practicable after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(o) cooperate with the selling Holders and the managing underwriter,
underwriters or agent, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwritings may request at least two Business Days prior to any sale or
Registrable Securities to the underwriters;
(p) not later than the effective date of the applicable registration
statement (or if later, the earliest Business Day thereafter on which a
CUSIP number is available), provide a CUSIP number for all Registrable
Securities and provide the applicable transfer agent with printed
certificates for the Registrable Securities which are in a form eligible
for deposit with The Depository Trust Company (if such Registrable
Securities are then eligible for such deposit);
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent, if any, participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(r) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement.
The Company may require each seller of Registrable Securities as to which
any registration statement is being effected to furnish the Company with such
information regarding such seller, and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities, as the
Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(f), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4(f), and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give such notice, the period mentioned in Section
4(b)(i) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 4(f) and
through and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by Section 4(f).
5. Indemnification.
(a) Indemnification by the Company. In the event of any registration of
any securities of the Company under the Securities Act pursuant to Section 2 or
3, the Company hereby indemnifies and agrees to hold harmless, to the extent
permitted by law, the seller of any Registrable Securities covered by such
registration
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statement, each affiliate of such seller and its directors and officers or
general and limited partners (and the directors, officers, affiliates and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Holder Indemnified Parties"), against any and
all losses, claims, damages or liabilities, joint or several, and expenses to
which such Holder Indemnified Party may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof, whether or not such Holder
Indemnified Party is a party thereto) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and the Company will reimburse such Holder Indemnified Party for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or proceeding
as such expenses are incurred; provided, that the Company shall not be liable to
any Holder Indemnified Party in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, in any such
preliminary, final or summary prospectus, or any amendment or supplement thereto
(i) following notice by the Company to such Holder Indemnified Party of any
Disadvantageous Condition or otherwise pursuant to Section 4(f) if such Holder
Indemnified Party thereafter uses the prospectus in effect at the time of such
notice, unless the Company has delivered a notice that such Disadvantageous
Condition or other circumstance specified in Section 4(f) no longer exists or
(ii) in reliance upon and in conformity with written information with respect to
such Holder Indemnified Party furnished to the Company by such Holder
Indemnified Party for use in the preparation thereof; and provided, further,
that the Company will not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, under the indemnity agreement in this Section 5(a) with respect
to any preliminary prospectus or the final prospectus or the final prospectus as
amended or supplemented, as the case may be, to the extent that any such loss,
claim, damage or liability of such underwriter or controlling Person results
from the fact that such underwriter sold Registrable Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Holder or any Holder Indemnified Party and shall survive the transfer of
such securities by any Holder.
(b) Indemnification by the Sellers and Underwriters. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 2 or 3 herein, that the
Company have received an undertaking reasonably satisfactory to it from the
prospective sellers of such Registrable Securities or any underwriter to
indemnify and hold harmless, severally and not jointly, the Company or any
underwriter, as the case may be, and any of their respective affiliates,
directors, officers and controlling Persons (the "Company Indemnified Parties",
and together with the Holder Indemnified Parties, the "Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or several,
and expenses to which such Company Indemnified Party may become subject under
the Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Company Indemnified Party is a party thereto) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the written
information furnished to the Company by such seller or such
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underwriter expressly for use in the preparation of such registration statement,
preliminary, final or summary prospectus, or any amendment or supplement
thereto, or a document incorporated by reference into any of the foregoing and
the sellers and such underwriters will reimburse such Company Indemnified Party
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or proceeding
as such expenses are incurred. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
such underwriter, or any Company Indemnified Party and shall survive the
transfer of such securities by any Holder.
(c) Notices of Claims, Etc. Promptly after receipt by an Indemnified Party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 5, such Indemnified Party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, that the failure of the Indemnified Party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under Section 5(a) or 5(b), except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, unless in the
reasonable judgment of the Indemnified Party's counsel a conflict of interest
between such Indemnified Parties and indemnifying parties may exist in respect
of such claim, the indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such Indemnified Party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof. If, in the reasonable judgment of the counsel for the
Indemnified Party, having common counsel would result in a conflict of interest
between the interests of such Indemnified Parties and indemnifying parties, then
such Indemnified Party may employ separate counsel reasonably acceptable to the
indemnifying party to represent or defend such Indemnified Party in such action,
it being understood, however, that the indemnifying party shall not be liable
for the reasonable fees and expenses of more than one separate firm of attorneys
at any time for all such Indemnified Parties (and not more than one separate
firm of local counsel at any time for all such Indemnified Parties) in such
action. Without the consent of the Indemnified Party, no indemnifying party will
consent to the entry of any judgment or enter into any settlement that includes
as a term thereof an admission of wrongdoing by the Indemnified Party, that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation or that imposes material obligations on the
Indemnified Party. No Indemnified Party shall agree to any settlement without
the prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld).
(d) Contribution. If recovery is not available under the foregoing
indemnification provisions of this Section 5 for any reason other than as
expressly specified therein, the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and expenses
except to the extent that contribution is not permitted under Section 11(f) of
the Securities Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered (x) the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds received by each), (y) the
relative fault of the parties in connection with the statements, actions or
omissions which resulted in the losses, claims, damages or liabilities which
gave rise to the indemnity obligation pursuant to this Section 5, and (z) any
other relevant equitable considerations under the circumstances. The relative
fault of the parties shall be determined with reference to, among other things,
whether such statement or omission relates to information supplied by the
indemnifying party or by the Indemnified Party and the parties' relative
knowledge, access to information and opportunity to prevent such action or
omission. The amount paid or payable by a party under this Section 5(d) as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation which does not take account of
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the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding anything in this Section 5 to the contrary, no indemnifying
party (other than the Company) shall be required pursuant to this Section 5 to
contribute any amount in excess of the gross proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the Indemnified Parties
relate. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(e) Non-Exclusivity. The obligations of the parties under this Section 5
shall be in addition to any liability which any party may otherwise have to any
other party.
6. Miscellaneous.
(a) Rule 144. The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder, make
publicly available such information as is specified in Section (c)(2) of Rule
144), all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC.
(b) Holdback Agreement. In connection with any registration by the Company
of Company Common Stock, each Holder agrees not to effect any public sale or
distribution (except in connection with such underwritten public offering
pursuant to Section 2(a)), including any sale pursuant to Rule 144 under the
Securities Act, of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering
pursuant to Section 2(a)), during the seven days prior to, and during the
120-day period (or such lesser period as the managing underwriters may permit,
it being understood that the Company will request that such managing
underwriters act in good faith in determining whether to permit a lesser period)
after the effective date of such registration (other than a Registrable Security
included in such registration pursuant to Section 2(a)). If any registration of
Registrable Securities pursuant to Section 3 of thus Agreement shall be in
connection with an underwritten public offering, the Company agrees not to
effect any public sale or distribution (except in connection with such
underwritten public offering), of any equity securities of the Company or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering) during the seven days prior to, and during the 45-day period (or such
lesser period as the managing underwriters may permit) after the effective date
of such registration.
(c) Amendments and Waivers. (i) This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding. Each Holder of
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment authorized by this Section 6(c).
(ii) The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. Except as
otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
(d) Successors, Assigns and Transferees. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(e) Additional Parties. Upon the transfer of any shares of Class A Common
Stock pursuant to clauses (iii) or (vi) of Section 3.2(c) of the Standstill
Agreement, such transferee shall become a party to this Agreement by agreeing in
writing to be bound by the terms and conditions of this Agreement pursuant to an
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instrument of assumption and shall thereby be deemed a Holder of Registrable
Securities for the purposes of this Agreement.
(f) Notices. All notices, requests, demands or other communications
provided herein shall be made in writing and shall be deemed to have been duly
given if delivered as follows:
If to the Company:
First Hawaiian, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
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 a copy to:
Pillsbury Madison & Sutro, LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
and
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Fax: (000) 000-0000
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on (i) the date of delivery
if sent by messenger, (ii) on the Business Day following the Business Day on
which delivered to a recognized courier service if sent by overnight courier or
(iii) on the date received, if sent by fax or regular mail.
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(g) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section to this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
(h) Severability. If any provision of this Agreement shall be declared by
any court of competent jurisdiction to be illegal, void or unenforceable, all
other provisions of this Agreement shall not be affected and shall remain in
full force and effect.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other parties.
(j) Remedies. Each of the parties hereto acknowledges and agrees that (i)
the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interests of the parties hereto, and (ii) the other
parties hereto would be irreparably damaged in the event any of the provisions
of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties hereto shall
be entitled to preliminary and permanent injunctive relief to prevent breaches
of the provisions of this Agreement by the other parties hereto without the
necessity of proving actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof and thereof, which rights shall be
cumulative and in addition to any other remedy to which the parties hereto may
be entitled hereunder or at law or equity.
(k) 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. Each of the parties
hereto 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. 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(k), 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) BNP hereby irrevocably designates French American Banking Corporation
(in such capacity, the "Process Agent"), with an office at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, as 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 BNP in the manner provided in Section 6(f).
Each of the Company and BNP 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 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
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irrevocable under the laws of the State of Delaware and of the United States of
America; provided that BNP's consent to jurisdiction and service contained in
this Section 6(k) is solely for the purpose referred to in this Section 6(k) 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,
BNP covenants that it shall appoint without delay another such agent reasonably
satisfactory to the Company.
(l) Further Assurances. From time to time, at the reasonable request of
any other party hereto and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(m) No Third-Party Rights. Nothing in this Agreement, expressed or
implied, shall or is intended to confer upon any Person other than the parties
hereto or their respective successors or assigns, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement.
(n) Entire Agreement; No Oral Waiver; Construction. This Agreement and the
other agreements and documents contemplated hereby and thereby constitute the
entire agreement among the parties pertaining to the subject matter hereof and
supersede all prior and contemporaneous agreements, understandings and
representations, whether oral or written, of the parties in connection
therewith. No covenant or condition or representation not expressed in this
Agreement shall affect or be effective to interpret, change or restrict this
Agreement. No prior drafts of this Agreement and no words or phrases from any
such prior drafts shall be admissible into evidence in any action, suit or other
proceeding involving this Agreement or the transactions contemplated hereby.
This Agreement may not be changed or terminated orally, nor shall any change,
termination or attempted waiver of any of the provisions of this Agreement be
binding on any party unless in writing signed by the parties hereto. No
modification, waiver, termination, rescission, discharge or cancellation of this
Agreement and no waiver of any provision of or default under this Agreement
shall affect the right of any party thereafter to enforce any other provision or
to exercise any right or remedy in the event of any other default, whether or
not similar. This Agreement has been negotiated by the parties hereto and their
respective legal counsel, and legal or equitable principles that might require
the construction of this Agreement against the party drafting this Agreement
will not apply in any construction or interpretation of this Agreement.
(o) Noncontravention of Other Agreements. Notwithstanding any other
provision of this Agreement to the contrary, no Holder shall have any right to
sell, transfer or otherwise dispose of any Registrable Securities in
contravention of the terms of the Merger Agreement or the Standstill Agreement.
(p) No Inconsistent Agreements. The Company agrees not to enter into any
other agreement that is inconsistent with or conflicts with any provision of
this Agreement or which would impair the ability of the Company to perform its
obligations under this Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
FIRST HAWAIIAN, INC.
By: /s/ XXXXXX X. XXXX
--------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
BANQUE NATIONALE DE PARIS
By: /s/ X. XXXX GARBOUA
--------------------------------------------
Name: X. Xxxx Garboua
Title: Directeur General Delegue
14
