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Exhibit 2
AGREEMENT AND PLAN OF MERGER
Dated as of May 8, 2001
As Amended and Restated
as of July 19, 2001
AMONG
BANCWEST CORPORATION,
BNP PARIBAS
AND
CHAUCHAT L.L.C.
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TABLE OF CONTENTS
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ARTICLE I
The Merger
SECTION 1.01. The Merger.................................................. 2
SECTION 1.02. Effective Time; Closing..................................... 2
SECTION 1.03. Effect of the Merger........................................ 2
SECTION 1.04. Certificate of Incorporation; By-laws....................... 2
SECTION 1.05. Directors and Officers...................................... 2
SECTION 1.06. Additional Actions.......................................... 3
SECTION 1.07. Change in Structure......................................... 3
ARTICLE II
Conversion of Securities; Exchange of Certificates;
Deposit; Disclosure Schedules
SECTION 2.01. Effect on Capital Stock and LLC Interests................... 3
SECTION 2.02. Exchange Procedures......................................... 4
SECTION 2.03. Company Stock Options; Company Restricted Stock; Plans...... 5
SECTION 2.04. Shares of Dissenting Stockholders........................... 6
SECTION 2.05. Adjustment of Merger Consideration.......................... 6
SECTION 2.06. Disclosure Schedules........................................ 7
ARTICLE III
Representations and Warranties of the Company
SECTION 3.01. Corporate Organization...................................... 7
SECTION 3.02. Capitalization.............................................. 8
SECTION 3.03. Authority; No Violation..................................... 8
SECTION 3.04. Consents and Approvals...................................... 9
SECTION 3.05. Reports..................................................... 9
SECTION 3.06. Financial Statements........................................ 10
SECTION 3.07. Company Action.............................................. 10
SECTION 3.08. Opinion of Financial Advisor................................ 10
SECTION 3.09. Broker's Fees............................................... 10
SECTION 3.10. Absence of Certain Changes or Events........................ 11
SECTION 3.11. Legal Proceedings........................................... 11
SECTION 3.12. Tax Matters................................................. 11
SECTION 3.13. Employee Benefit Plans; ERISA............................... 11
SECTION 3.14. SEC Reports................................................. 13
SECTION 3.15. Licenses; Compliance with Applicable Law.................... 13
SECTION 3.16. Certain Contracts........................................... 13
SECTION 3.17. Agreements with Regulatory Agencies......................... 13
SECTION 3.18. Undisclosed Liabilities..................................... 14
SECTION 3.19. Environmental Matters....................................... 14
SECTION 3.20. Transactions with Affiliates................................ 14
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ARTICLE IV
Representations and Warranties of Parent
SECTION 4.01. Corporate Organization...................................... 14
SECTION 4.02. Authority; No Violation..................................... 15
SECTION 4.03. Consents and Approvals...................................... 15
SECTION 4.04. Financing................................................... 16
SECTION 4.05. Litigation; Regulatory Action............................... 16
SECTION 4.06. Absence of Certain Changes.................................. 16
ARTICLE V
Conduct of Business Pending the Merger
SECTION 5.01. Conduct of Business Prior to the Effective Time............. 16
SECTION 5.02. Forbearances of the Company................................. 16
SECTION 5.03. Covenants of Parent......................................... 18
ARTICLE VI
Additional Agreements
SECTION 6.01. Stockholders' Meeting....................................... 18
SECTION 6.02. Regulatory Matters.......................................... 19
SECTION 6.03. Access to Information; Confidentiality...................... 20
SECTION 6.04. Other Offers................................................ 21
SECTION 6.05. Indemnification and Insurance............................... 22
SECTION 6.06. Notification of Certain Matters............................. 23
SECTION 6.07. Public Announcements........................................ 23
SECTION 6.08. Exchange Act and NYSE Filings............................... 23
SECTION 6.09. Reasonable Best Efforts..................................... 23
SECTION 6.10. Performance by Merger Sub................................... 24
SECTION 6.11. Takeover Statutes........................................... 24
SECTION 6.12. Standstill Agreement........................................ 24
SECTION 6.13. Employee Benefits........................................... 24
ARTICLE VII
Conditions Precedent
Conditions to Each Party's Obligation To Effect the
SECTION 7.01. Merger...................................................... 25
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub.......... 26
SECTION 7.03. Conditions to Obligations of the Company.................... 26
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination................................................. 26
SECTION 8.02. Effect of Termination....................................... 28
SECTION 8.03. Amendment................................................... 28
SECTION 8.04. Extension; Waiver........................................... 29
ARTICLE IX
General Provisions
Non-Survival of Representations, Warranties and
SECTION 9.01. Agreements.................................................. 29
SECTION 9.02. Expenses.................................................... 29
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SECTION 9.03. Notices..................................................... 29
SECTION 9.04. Definitions and Usage....................................... 30
SECTION 9.05. Accounting Terms............................................ 33
SECTION 9.06. Severability................................................ 33
SECTION 9.07. Entire Agreement; Assignment................................ 33
SECTION 9.08. Parties in Interest......................................... 33
SECTION 9.09. Specific Performance........................................ 33
SECTION 9.10. Governing Law; Consent to Jurisdiction...................... 33
SECTION 9.11. Headings.................................................... 34
SECTION 9.12. Counterparts................................................ 34
SECTION 9.13. Construction................................................ 34
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
This AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of July
19, 2001 (this "Agreement"), is by and among BancWest Corporation, a Delaware
corporation (the "Company"), BNP Paribas, a societe anonyme or limited liability
banking corporation organized under the laws of the Republic of France
("Parent"), and Chauchat L.L.C., a Delaware limited liability company ("Merger
Sub");
WHEREAS, the Company, Parent and Merger Sub entered into an Agreement and
Plan of Merger, dated as of May 8, 2001 (the "Original Merger Agreement"), and
they now desire to amend and restate the Original Merger Agreement to, among
other things, permit the Company to pay a pro rata dividend to holders of
Company Common Shares (as defined below) under specified circumstances (it being
understood that all references herein to "the date hereof" refer to May 8,
2001).
WHEREAS, the Company has authority to issue (i) 400,000,000 shares of
Common Stock, par value $1.00 per share (the "Company Common Stock"), 68,635,656
of which were outstanding as of May 2, 2001, (ii) 150,000,000 shares of Class A
Common Stock, par value $1.00 per share (the "Class A Common Stock" and together
with the Company Common Stock, the "Company Common Shares"), 56,074,874 of which
were outstanding as of the date hereof and (iii) 50,000,000 shares of Preferred
Stock (the "Company Preferred Stock"), none of which are outstanding;
WHEREAS, Parent and its Subsidiaries own all of the outstanding shares of
Class A Common Stock;
WHEREAS, Parent has proposed to the Board of Directors of the Company that
Parent or an affiliate acquire all of the Company Common Stock;
WHEREAS, Merger Sub is a limited liability company, the sole member of
which is Chauchat Holdings Corporation, a Delaware corporation ("US Parent") and
wholly-owned subsidiary of Parent, formed for the purpose of entering into this
Agreement and consummating the transactions contemplated hereby;
WHEREAS, the Executive Committee of the Board of Directors of the Company
has established a special committee (the "Special Committee"), consisting only
of non-management directors elected by holders of the Company Common Stock, to
consider, among other things, the transactions contemplated by this Agreement
and to make a recommendation to the Board of Directors of the Company with
respect thereto;
WHEREAS, the Special Committee (i) has determined that it is fair to and in
the best interests of the Company and the holders of Company Common Stock to
consummate the merger (the "Merger") of Merger Sub with and into the Company
upon the terms and subject to the conditions set forth in this Agreement and in
accordance with the Delaware General Corporation Law (the "DGCL") and the
Delaware Limited Liability Company Act (the "DLLCA") and (ii) has approved the
Merger and determined that the Merger and the other transactions contemplated by
this Agreement should be approved and declared advisable by the Board of
Directors of the Company and that the Board of Directors of the Company should
resolve to recommend that the holders of Company Common Shares adopt this
Agreement;
WHEREAS, the respective Boards of Directors of the Company and Parent, and
US Parent, as the sole member of Merger Sub, and US Parent have approved and
declared advisable this Agreement and the Merger and the other transactions
contemplated hereby upon the terms and subject to the conditions set forth in
this Agreement and in accordance with the DGCL and the DLLCA and the Board of
Directors of the Company has resolved to recommend that the Company's
stockholders adopt this Agreement and the Merger; and
WHEREAS, the respective Boards of Directors of the Company and Parent have
determined that the Merger is fair to and in the best interests of their
respective stockholders.
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. Upon the terms and subject to the conditions set
forth in Article VII, and in accordance with the provisions of the DGCL and the
DLLCA, at the Effective Time (as defined below), Merger Sub shall be merged with
and into the Company. As a result of the Merger, the separate existence of
Merger Sub shall cease, and the Company shall continue as the surviving
corporation (the "Surviving Corporation") under the name BancWest Corporation.
SECTION 1.02 Effective Time; Closing. The closing of the Merger (the
"Closing") shall take place (i) at the offices of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 a.m. New York City time
on the third business day after all of the conditions set forth in Article VII
have been satisfied or, subject to applicable law, waived (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the satisfaction or waiver of those conditions) in accordance with this
Agreement or (ii) at such other place and time and/or on such other date as
Parent and the Company may agree in writing (the "Closing Date"). Subject to the
provisions of this Agreement, as soon as practicable on the Closing Date, the
parties hereto shall file a certificate of merger (the "Certificate of Merger")
with the Secretary of State of the State of Delaware, in such form as required
by, and executed in accordance with, the DGCL and the DLLCA. The term "Effective
Time" means the date and time of the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware (or such later time as may be
agreed by the parties hereto and specified in the Certificate of Merger).
SECTION 1.03 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of the DGCL and the
DLLCA. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, without further act or deed, all the property, rights,
immunities, privileges, powers, franchises and licenses of the Company and
Merger Sub shall vest in the Surviving Corporation and all debts, liabilities,
obligations, restrictions and duties of each of the Company and Merger Sub shall
become the debts, liabilities, obligations, restrictions and duties of the
Surviving Corporation.
SECTION 1.04 Certificate of Incorporation; By-laws.
(a) Certificate of Incorporation. At the Effective Time, the Certificate
of Incorporation of the Company as in effect immediately prior to the Effective
Time shall be amended so as to read in its entirety as set forth in Exhibit A
hereto, and as so amended shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended in accordance with its terms and
as provided by the DGCL.
(b) By-laws. At the Effective Time, the By-laws of the Company as in
effect immediately prior to the Effective Time shall be amended so as to read in
their entirety as set forth in Exhibit B hereto, and as so amended shall be the
By-laws of the Surviving Corporation until thereafter amended in accordance with
their terms and as provided by the DGCL and the Certificate of Incorporation of
the Surviving Corporation.
SECTION 1.05 Directors and Officers.
(a) Directors. From and after the Effective Time, the directors of the
Company shall be the directors of the Surviving Corporation until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be, in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, the DGCL and this
Agreement.
(b) Officers. From and after the Effective Time, the officers of the
Company immediately prior to the Effective Time shall be the officers of the
Surviving Corporation and shall hold office until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be, in
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accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation, the DGCL and this Agreement.
SECTION 1.06 Additional Actions. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any further deeds,
assignments or assurances in law or any other acts are necessary or desirable to
(a) vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its rights, title or interest in, to or under any of the rights,
properties or assets of the Company or its Subsidiaries, or (b) otherwise carry
out the provisions of this Agreement, the Company and its officers and directors
shall be deemed to have granted to the Surviving Corporation an irrevocable
power of attorney to execute and deliver all such deeds, assignments or
assurances in law and to take all acts necessary, proper or desirable to vest,
perfect or confirm title to and possession of such rights, properties or assets
in the Surviving Corporation and otherwise to carry out the provisions of this
Agreement, and the officers and directors of the Surviving Corporation are
authorized in the name of the Company to take any and all such action.
SECTION 1.07 Change in Structure. Parent may, at any time prior to the
mailing of the Proxy Statement to the stockholders of the Company, change the
method of effecting the combination with the Company to substitute a direct or
indirect Delaware corporate subsidiary of Parent for Chauchat L.L.C., in which
case (i) all references to Merger Sub in this Agreement shall be deemed to refer
to such subsidiary and all references to Merger Sub being a limited liability
company shall be deemed to refer to Merger Sub being a corporation, (ii) all
references to Merger Sub Units shall be deemed to refer to the common stock of
such subsidiary, and (iii) all references to the DLLCA shall be disregarded;
provided, that no such change shall alter or change in any way the consideration
to be issued to holders of Company Common Stock or the holders of Options or
Restricted Shares or impede or delay consummation of the Merger.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; DEPOSIT;
DISCLOSURE SCHEDULES
SECTION 2.01 Effect on Capital Stock and LLC Interests. As of the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any Company Common Shares or any limited liability company
interests of Merger Sub (the "Merger Sub Units"):
(a) Cancellation of Merger Sub Units. All of the Merger Sub Units
issued and outstanding immediately prior to the Effective Time shall be
canceled and retired and shall cease to exist without any consideration
payable therefor.
(b) Cancellation of Company Owned Stock. All shares of Company Common
Stock and Class A Common Stock (if any) that are held in the treasury of
the Company or by any wholly owned Subsidiary of the Company (other than
Company Common Shares owned, directly or indirectly, in trust accounts,
managed accounts and the like or otherwise held in a fiduciary or custodial
capacity that are beneficially owned by third parties ("Fiduciary Shares")
and other than any Company Common Shares held in respect of a debt
previously contracted) shall be canceled and shall cease to exist without
any consideration payable therefor.
(c) Conversion of Company Common Stock. Each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other
than (i) Dissenting Shares, if applicable, and (ii) shares of Company
Common Stock referred to in Section 2.01(b)), shall be converted into the
right to receive from the Surviving Corporation $35.00 in cash (the "Merger
Consideration") without interest thereon upon surrender of the certificate
previously representing such share of Company Common Stock as provided in
Section 2.02(c). As of the Effective Time, all shares of Company Common
Stock (other than (i) Dissenting Shares, if applicable, and (ii) shares of
Company Common Stock referred to in Section 2.01(b)) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist,
and each certificate (a "Certificate") which immediately prior to the
Effective Time represented any such share of Company Common Stock (other
than Certificates representing (i) Dissenting Shares, if applicable, and
(ii) shares of Company Common Stock referred to in Section 2.01(b)) shall
cease to
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have any rights with respect thereto, except the right to receive the
Merger Consideration and any dividends or other distributions to which
holders become entitled in accordance with this Article II upon the
surrender of such Certificate.
(d) Treatment of Class A Common Stock. Each share of Class A Common
Stock issued and outstanding immediately prior to the Effective Time (other
than shares of Class A Common Stock to be canceled pursuant to Section
2.01(b)) shall remain issued and outstanding as Class A Common Stock of the
Surviving Corporation, which shall have the terms and conditions specified
in the Certificate of Incorporation of the Surviving Corporation set forth
in Exhibit A hereto.
SECTION 2.02. Exchange Procedures. (a) At and after the Effective Time,
each Certificate formerly representing shares of Company Common Stock shall
(except as specifically set forth in Section 2.01 and subject to applicable law
in the case of Dissenting Shares) represent only the right to receive the Merger
Consideration, without interest.
(b) At or prior to the Effective Time, Parent shall or shall cause Merger
Sub to deposit, or cause to be deposited, with a bank or trust company
reasonably satisfactory to the Company (it being understood that an affiliate of
Parent or the Company is reasonably satisfactory to the Company) (the "Paying
Agent"), for the benefit of the holders of the Certificates, funds in the
aggregate amount to be paid pursuant to this Article II in exchange for
outstanding shares of Company Common Stock. Any cash deposited with the Paying
Agent shall hereinafter be referred to as the Exchange Fund.
(c) As promptly as practicable after the Effective Time, the Surviving
Corporation shall send or cause to be sent to each holder of record of shares of
Company Common Stock (other than shares that are not to be canceled in exchange
for Merger Consideration pursuant to Section 2.01(c)) immediately prior to the
Effective Time transmittal materials for use in exchanging Certificates for the
Merger Consideration. The Surviving Corporation shall cause any check in respect
of the Merger Consideration (together with any dividends or other distributions
to which holders become entitled in accordance with this Article II upon
surrender of such Certificate) which such person shall be entitled to receive to
be delivered to such stockholder upon delivery to the Paying Agent of
Certificates formerly representing such shares of Company Common Stock (or
indemnity reasonably satisfactory to the Surviving Corporation and the Paying
Agent, if any of such Certificates are lost, stolen or destroyed) owned by such
stockholder. In the event of a transfer of ownership of the shares of Company
Common Stock that is not registered in the transfer records of the Company,
payment may be made to a person other than the person in whose name the
Certificate so surrendered is registered, if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the person requesting
such payment shall pay any transfer or other taxes required by reason of the
payment to a person other than the registered holder of such Certificate or
establish to the satisfaction of the Surviving Corporation that such tax has
been paid or is not applicable. No interest will be paid on any such cash to be
paid pursuant to this Article II upon such delivery. The Surviving Corporation
shall be entitled to deduct and withhold from the Merger Consideration otherwise
payable to any holder of Certificates such amounts (if any) as the Surviving
Corporation determines are required to be deducted or withheld under the Code,
or any provision of United States, state or local tax law or any foreign tax law
applicable as a result of the residence, location, domicile or other facts
relating to the stockholder. To the extent that amounts are so withheld by the
Surviving Corporation, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of such Certificates.
(d) Subject to Section 2.04, at the Effective Time, holders of Company
Common Stock shall cease to be, and shall have no rights as, stockholders of the
Company, other than to receive any dividend or other distribution with respect
to the Company Common Stock with a record date occurring prior to the Effective
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Time (including any Pro Rata Dividend) and the Merger Consideration. From and
after the Effective Time, there shall be no transfers on the stock transfer
records of the Company of any shares of the Company Common Stock that were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation or the Paying
Agent for transfer, they shall be canceled and exchanged for the Merger
Consideration deliverable in respect thereof pursuant to this Agreement in
accordance with the procedures set forth in this Section 2.02 together with any
dividends or other distributions to which the holder becomes entitled in
accordance with this Article II upon the surrender of such Certificates.
(e) Any funds (including any interest with respect thereto) which have been
made available to the Paying Agent and that remain unclaimed by the former
stockholders of the Company for twelve months after the Effective Time shall be
paid to the Surviving Corporation. Any former stockholders of the Company who
have not theretofore complied with this Article II shall thereafter look only to
the Surviving Corporation and Parent for payment of the Merger Consideration in
respect of each share of Company Common Stock formerly held by such stockholder
as determined pursuant to this Agreement, in each case, without any interest
thereon. Any Merger Consideration remaining unclaimed as of a date which is
immediately prior to such time as such amounts would otherwise escheat to or
become property of any Governmental Entity shall, to the extent permitted by
applicable law, become the property of the Surviving Corporation free and clear
of any claims or interest of any person previously entitled thereto.
Notwithstanding the foregoing, none of the Paying Agent, Parent, the Company,
Merger Sub or the Surviving Corporation shall be liable to any former holder of
Company Common Stock for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Paying
Agent, the Surviving Corporation or Parent, as the case may be, the posting by
such person of a bond in such amount as the Paying Agent, the Surviving
Corporation or Parent, as the case may be, may reasonably direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Paying Agent, the Surviving Corporation or Parent, as the case may be, shall
issue in exchange for such lost, stolen or destroyed Certificate the applicable
Merger Consideration deliverable in respect thereof pursuant to this Agreement
and any dividends or other distributions to which holders become entitled in
accordance with this Article II upon the surrender of such Certificate.
(g) Any portion of the Merger Consideration made available to the Paying
Agent pursuant to this Section 2.02 to pay for shares of Company Common Stock
for which appraisal rights have been perfected in accordance with Section 262 of
the DGCL shall be returned to the Surviving Corporation upon demand.
(h) The Paying Agent shall invest any cash included in the Exchange Fund,
as directed by Parent, on a daily basis; provided, that in the case of any
losses incurred in the Exchange Fund as a result of such investments, Parent
shall, or shall cause the Surviving Corporation, to take all actions necessary
(including by depositing additional cash) to ensure that the Exchange Fund
includes cash sufficient to satisfy the obligations of Parent and the Surviving
Corporation to pay the Merger Consideration payable pursuant to this Article II
and any dividends or other distributions to which holders become entitled in
accordance with this Article II upon the surrender of Certificates. Any interest
and other income resulting from such investments shall be paid to or at the
direction of the Surviving Corporation.
SECTION 2.03. Company Stock Options; Company Restricted Stock; Plans.
(a) Stock Options. At the Effective Time, each option (and any stock
appreciation rights associated therewith) to purchase a share of Company Common
Stock (an "Option" and, collectively, the "Options") outstanding and unexercised
as of the Effective Time granted pursuant to the 1998 Stock Incentive Plan (as
amended), the Stock Incentive Plan (as amended), the California Community
Bancshares Corporation 1993 Stock Option Plan, the Continental Pacific Bank 1990
Amended Stock Option Plan, the SierraWest Bancorp 1996 Stock Option Plan (as
amended), the Sierra Tahoe Bancorp 1988 Stock Option Plan (as amended) and any
other equity-based plans or agreements of or with the Company or any of its
Subsidiaries providing for the granting of options with respect to Company
Common Stock (collectively, the "Company Stock Option Plans") shall be canceled,
whether or not then exercisable or vested, and shall represent the right to
receive
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the following consideration in settlement thereof. Each Option shall vest as a
result of the Merger and shall become exercisable at or immediately prior to the
Effective Time. The Surviving Corporation (or any trust that is adopted in
connection with any such Company Stock Option Plan) shall pay to the holder of
any Option the excess (rounded to the nearest $0.01), if any, of the Merger
Consideration over such Option's exercise price (the "Option Spread") as soon as
practicable after the Effective Time. All payments made pursuant to this Section
2.03(a) shall be reduced by all applicable withholding taxes and other similar
charges.
(b) Restricted Shares. At the Effective Time, each share of restricted
stock (a "Restricted Share" and, collectively, the "Restricted Shares")
outstanding as of the Effective Time issued pursuant to a Company Stock Option
Plan, the Incentive Plan for Key Executives (as amended) or any other
equity-based plans or agreements of or with the Company or any of its
Subsidiaries providing for the granting of restricted stock awards with respect
to Company Common Stock (collectively, the "Company Equity Plans" and together
with the Company Stock Option Plans, the "Company Stock Plans"), to the extent
not already vested, shall vest and shall represent the right to receive the
following consideration in settlement thereof. The Surviving Corporation (or any
trust that is adopted in connection with any such Company Equity Plan) shall pay
to the holder of a Restricted Share the Merger Consideration as soon as
practicable after the Effective Time. All payments made pursuant to this Section
2.03(b) shall be reduced by all applicable withholding taxes and other similar
charges.
(c) As of the Effective Time, the Company shall use its reasonable best
efforts, in consultation with Parent, to remove, or cause to be removed from
each and every plan, program, agreement or arrangement any right of any
participant thereunder to invest in, or receive a distribution in, Company
Common Stock.
SECTION 2.04. Shares of Dissenting Stockholders. (a) Notwithstanding
anything in this Agreement to the contrary, any shares (the "Dissenting Shares")
of Company Common Stock that are issued and outstanding as of the Effective Time
and that are held by a holder who has not voted in favor of the Merger or
consented thereto in writing and who properly demands appraisal of such
Dissenting Shares pursuant to, and who complies in all respects with, Section
262 of the DGCL, shall not be converted into the right to receive the Merger
Consideration as provided in Section 2.01(c), unless and until such holder shall
have failed to perfect, or shall have effectively withdrawn or lost, his or her
right to appraisal under the DGCL, and instead shall be entitled to receive such
consideration as may be determined to be due with respect to such Dissenting
Shares pursuant to and subject to the requirements of Section 262 of the DGCL.
If, after the Effective Time, any such holder shall have failed to perfect or
shall have effectively withdrawn or lost such right, each share of such holder's
Company Common Stock shall thereupon be deemed to have been converted into and
to have become, as of the Effective Time, the right to receive, without
interest, the Merger Consideration, in accordance with Section 2.01 (together
with any dividends or other distributions to which holders of Certificates
become entitled in accordance with this Article II upon the surrender of such
Certificates).
(b) The Company shall give Merger Sub and Parent (i) prompt notice of any
notices or demands (or withdrawals of notices or demands) for appraisal or
payment for shares of Company Common Stock received by the Company and (ii) the
opportunity to participate in and direct all negotiations and proceedings with
respect to any such demands or notices. The Company shall not, without prior
written consent of Merger Sub and Parent, make any payments, or settle, offer to
settle or otherwise negotiate, with respect to any such demands.
(c) Dissenting Shares, if any, after payments of fair value in respect
thereof have been made to the holders thereof pursuant to the DGCL, shall be
canceled.
SECTION 2.05. Adjustment of Merger Consideration. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of Company Common Stock shall have been changed into a
different number of shares of a different class as a result of a stock split,
reverse stock split, stock dividend, subdivision, reclassification, split,
combination, exchange, recapitalization or other similar transaction, the Merger
Consideration and any other number or amount which is based upon the number of
shares of Company Common Stock shall be appropriately adjusted.
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SECTION 2.06. Disclosure Schedules. (a) Prior to the execution and
delivery of this Agreement, the Company has delivered to Parent and Merger Sub,
and Parent and Merger Sub have delivered to the Company, a schedule (in the case
of the Company, the "Company Disclosure Schedule," and, in the case of Parent
and Merger Sub, the "Parent Disclosure Schedule") setting forth, among other
things, in each case with respect to specified sections of this Agreement, items
the disclosure of which is necessary or appropriate either in response to an
express disclosure requirement contained in a provision hereof or as an
exception to one or more of such party's representations or warranties contained
in Article III, in the case of the Company, or Article IV, in the case of Parent
and Merger Sub, or to one or more of such party's covenants contained in Article
V; provided, however, that notwithstanding anything in this Agreement to the
contrary, (i) no such item is required to be set forth in a Disclosure Schedule
as an exception to a representation or warranty if its absence would not result
in the related representation or warranty being deemed untrue or incorrect under
the standard established by Section 2.06(b), and (ii) the mere inclusion of an
item in a Disclosure Schedule as an exception to a representation or warranty
shall not be deemed an admission by a party that such item represents a material
exception or material fact, event or circumstance or that such item has had or
would have a Material Adverse Effect with respect to the Company or Parent,
respectively. Matters disclosed in any particular section of a Disclosure
Schedule shall be deemed to have been disclosed in any other section with
respect to which such matter is relevant so long as the relevance of such
disclosure is readily apparent.
(b) No representation of the Company contained in Article III (other than
Section 3.02, which shall be true in all meaningful respects, and Section
3.10(a)) or of Parent or Merger Sub contained in Article IV shall be deemed
untrue or incorrect for any purpose under this Agreement, and no party hereto
shall be deemed to have breached a representation or warranty for any purpose
under this Agreement, in any case as a consequence of the existence or absence
of any fact, circumstance or event unless such fact, circumstance or event,
individually or when taken together with all other facts, circumstances or
events inconsistent with any representations or warranties contained in Article
III, in the case of the Company, or Article IV, in the case of Parent or Merger
Sub, has had or would be reasonably likely to have a Material Adverse Effect
with respect to the Company or Parent, respectively. For all purposes of
determining whether any facts or events contravening a representation or
warranty contained herein constitute, individually or in the aggregate, a
Material Adverse Effect, representations and warranties contained in Article III
(other than Section 3.10(a)) or IV shall be read without regard to any reference
to materiality or to Material Adverse Effect set forth therein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company Disclosure Schedule, the Company hereby
represents and warrants to each of Parent and Merger Sub as follows:
SECTION 3.01. Corporate Organization. (a) The Company and each of its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended (the
"BHCA"). The Company and each of its Subsidiaries has the corporate or other
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted, and is duly licensed or
qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary.
(b) All of the outstanding shares of capital stock or other securities
evidencing ownership of the Company's Subsidiaries are validly issued, fully
paid and (except as otherwise required by law) non-assessable and, except as set
forth in Section 3.01(b) of the Company Disclosure Schedule, such shares or
other securities are owned by the Company or its wholly owned Subsidiaries free
and clear of any lien, claim, charge, option, encumbrance, mortgage, pledge or
security interest (a "Lien") with respect thereto. The Company Disclosure
Schedule sets forth a list of all persons deemed to be a Subsidiary of the
Company or any of its Subsidiaries within the meaning of the BHCA together with
each such entity's jurisdiction of organization.
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SECTION 3.02. Capitalization. The authorized capital stock of the Company
consists solely of (a) 400,000,000 shares of Company Common Stock, of which
68,635,656 shares (including 29,778 Restricted Shares) were outstanding as of
May 2, 2001; (b) 150,000,000 shares of Class A Common Stock, of which 56,074,874
are outstanding as of the date hereof; and (c) 50,000,000 shares of Company
Preferred Stock, none of which are outstanding as of the date hereof. As of May
2, 2001, 2,421,106 shares of Company Common Stock, no shares of Class A Common
Stock and no shares of Company Preferred Stock were held in the Company's
treasury. As of May 2, 2001, no shares of Company Common Stock or Class A Common
Stock were reserved for issuance, except for 8,605,476 shares of the Company
Common Stock reserved for issuance in connection with the Company Stock Option
Plans and except for 56,074,874 shares of Company Common Stock reserved for
issuance upon conversion of Class A Common Stock. All of the issued and
outstanding shares of Company Common Stock and Class A Common Stock have been
duly authorized and validly issued and are fully paid, non-assessable and free
of preemptive rights, with no personal liability attaching to the ownership
thereof. As of May 2, 2001, 5,180,806 shares of Company Common Stock were
subject to outstanding Options. There are not any bonds, debentures, notes or
other indebtedness of the Company or any of its Subsidiaries having the right to
vote (or convertible into, or exchangeable for, securities having the right to
vote) on matters on which holders of Company Common Stock may vote ("Voting
Debt"). Except as set forth above and except as provided in this Agreement,
there are not any options, warrants, rights, scrip, rights to subscribe to,
calls, convertible or exchangeable securities, "phantom" stock rights, stock
appreciation rights, stock-based performance units, commitments, Contracts,
arrangements or undertakings of any kind to which the Company or any of its
Subsidiaries is a party or by which any of them is bound (i) obligating the
Company or any of its Subsidiaries to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock of, or other
equity interests in, or any security convertible into or exercisable for or
exchangeable into any capital stock of, or other equity interest in, the Company
or any of its Subsidiaries or any Voting Debt, (ii) obligating the Company or
any of its Subsidiaries to issue, grant, extend or enter into any such option,
warrant, right, scrip, call, security, commitment, Contract, arrangement or
undertaking or (iii) that give any person the right to receive any economic
benefit or right similar to or derived from the economic benefits and rights
accruing to holders of capital stock of, or other equity interests in, the
Company or any of its Subsidiaries. Except as set forth in Section 3.02 of the
Company Disclosure Schedule, since May 2, 2001, the Company has not (i) issued
any shares of its capital stock or any securities convertible into or
exercisable for any shares of its capital stock, other than shares of Company
Common Stock issued upon the exercise, settlement or conversion of Options,
outstanding as of such date or (ii) taken any actions which would cause an
antidilution adjustment under any outstanding Options. Except as set forth in
Section 3.02 of the Company Disclosure Schedule, there are no outstanding
contractual obligations of the Company or any of its Subsidiaries to repurchase,
redeem or otherwise acquire, or to register for sale, any shares of capital
stock of, or other equity interests in, the Company or any of its Subsidiaries.
Except as set forth in Section 3.02 of the Company Disclosure Schedule, there
are no outstanding contractual obligations of the Company or any of its
Subsidiaries to vote or to dispose of any shares of the capital stock of any of
its Subsidiaries.
SECTION 3.03 Authority; No Violation. (a) The Company has full corporate
power and authority to execute and deliver this Agreement and, subject to the
adoption of this Agreement by the requisite vote of holders of Company Common
Shares and the filing and recordation of appropriate merger documents under
applicable law, to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby have been duly and validly
approved by all necessary corporate action and no other corporate proceedings on
the part of the Company (other than the Company Stockholder Approval (as defined
below) and the filing and recordation of appropriate merger documents as
required by the DGCL and the DLLCA) are necessary to approve this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Company and (assuming due
authorization, execution and delivery by Parent and Merger Sub) constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(b) Neither the execution and delivery of this Agreement by the Company,
nor the consummation by the Company of the Merger, nor compliance by the Company
with any of the terms or provisions hereof, will
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(i) violate any provision of the Certificate of Incorporation, By-laws or other
organizational documents of the Company or any of its Subsidiaries or (ii)
assuming that the consents and approvals and waiting periods referred to in
Section 3.04 are duly obtained or satisfied, violate any statute (including
Section 203 of the DGCL), code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to the Company or any of its Subsidiaries
or any of their respective properties or assets, or violate, conflict with,
result in a breach of any provision of or the loss of any material benefit
under, constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or a right
of termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien (or have any of such results or effects, upon
notice or lapse of time, or both) upon any of the respective properties or
assets of the Company or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement, contract, permit, concession, franchise, or other
instrument, ("Contract") to which the Company or any of its Subsidiaries is a
party, or by which they or any of their respective properties, assets or
business activities may be bound or affected.
(c) The only vote of holders of any class or series of the Company's
capital stock necessary to adopt this Agreement and the Merger is the adoption
of this Agreement by the holders of a majority of the outstanding Company Common
Shares, voting together as a single class (the "Company Stockholder Approval").
SECTION 3.04. Consents and Approvals. Except for (a) the requisite filings
with, notices to and approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") under the BHCA, (b) the filing of any
required applications or notices with the California State Banking Department
and Oregon, Washington, Idaho, Nevada, New Mexico and Hawaii banking
authorities, (c) the filing with the U.S. Securities and Exchange Commission
(the "SEC") of the Proxy Statement in definitive form, (d) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL and the DLLCA, (e) any consents, authorizations, approvals,
filings or exemptions in connection with compliance with the applicable
provisions of supranational, federal, state and foreign laws (including, without
limitation, securities and insurance laws) relating to the regulation of
broker-dealers, futures commission merchants, commodities trading advisors,
commodities pool operators, investment advisers and insurance agencies and any
applicable domestic or foreign industry self-regulatory organization or stock
exchange ("SRO"), and the rules of the New York Stock Exchange (the "NYSE"), (f)
the Company Stockholder Approval, (g) the expiration of any applicable waiting
period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act") or any consents, authorizations, approvals, filings or
exemptions required by any other applicable antitrust law or merger regulation,
(h) such additional consents and approvals set forth in Section 3.04 of the
Company Disclosure Schedule, and (i) consents, authorizations, approvals,
filings and registrations the failure of which to obtain or make would not be
reasonably likely to result, individually or in the aggregate, in a Material
Adverse Effect with respect to the Company, no consents, authorizations or
approvals of or filings or registrations with any supranational, federal, state,
local or foreign court, administrative agency or commission or other
governmental or regulatory authority or instrumentality (each a "Governmental
Entity") or of or with any other person by or on behalf of the Company, are
necessary in connection with the execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby.
SECTION 3.05. Reports. (a) The Company and each of its Subsidiaries have
filed all material reports, registrations, statements and other documents,
together with any amendments required to be made with respect thereto, that they
were required to file since January 1, 1999 with (a) the SEC, (b) any SRO and
(c) any other federal, state, local or foreign governmental or regulatory agency
or authority (collectively with the SEC and the SROs, "Regulatory Agencies"),
and have paid all fees and assessments due and payable in connection therewith.
Except for normal examinations conducted by a Regulatory Agency in the regular
course of the business of the Company and its Subsidiaries, no Regulatory Agency
has initiated any proceeding or, to the Knowledge of the Company, investigation
into the business or operations of the Company or any of its Subsidiaries since
January 1, 1999.
(b) Presentation materials and reports prepared by or under the direction
of management of the Company and distributed or made available to the members of
the Board of Directors of the Company since
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January 1, 1999 and prior to the date hereof were, taking into account the
subject matter and purpose thereof, complete and accurate in all material
respects and, except to the extent superseded by materials made available to the
directors of the Company prior to the date hereof, did not contain any untrue
statement of a material fact or fail to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made (and other information generally
available to the directors), not misleading.
SECTION 3.06. Financial Statements. The Company has previously made
available to Parent copies of (a) the consolidated balance sheets of the Company
and its Subsidiaries as of December 31, 1999 and December 31, 2000, (b) the
related consolidated statements of income, changes in stockholders' equity and
cash flows for the fiscal years 1998 through 2000, inclusive, as reported in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
2000, filed with the SEC under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), in each case accompanied by the audit report of the
Company's independent public accountants, and (c) the unaudited consolidated
balance sheets of the Company at March 31, 2000 and March 31, 2001 and related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the three month periods then ended to be included in the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2001. The financial statements referred to in the preceding sentence (including
the related notes, where applicable) fairly present in all material respects the
consolidated financial position of the Company and its consolidated Subsidiaries
for the respective fiscal periods or as of the respective dates therein set
forth, and any financial statements filed by the Company with the SEC under the
Exchange Act after the date of this Agreement (including the related notes,
where applicable) will fairly present in all material respects (including the
related notes, where applicable) (subject, in the case of the unaudited
statements, to recurring audit adjustments normal in nature and amount) the
results of the consolidated operations and changes in stockholders' equity and
consolidated financial position of the Company and its Subsidiaries for the
respective fiscal periods or as of the respective dates therein set forth; each
of such statements (including the related notes, where applicable) comply (and,
in the case of the financial statements filed after the date of this Agreement,
will comply) in all material respects with applicable accounting requirements
and with the published rules and regulations of the SEC with respect thereto;
and each of such statements (including the related notes, where applicable) has
been prepared (and, in the case of the financial statements filed after the date
of this Agreement, will be prepared) in all material respects in accordance with
United States generally accepted accounting principles ("GAAP") consistently
applied during the periods involved, except, in each case, as indicated in such
statements or in the notes thereto or, in the case of unaudited statements, as
permitted by Form 10-Q promulgated by the SEC.
SECTION 3.07. Company Action. (a) The Special Committee (i) has been duly
authorized and constituted and (ii) at a meeting duly called and held has (A)
determined that this Agreement and the Merger are fair to, and in the best
interests of, the Company and the holders of Company Common Stock and (B)
recommended that this Agreement and the transactions contemplated hereby should
be approved and adopted by the Board of Directors of the Company and that the
Board of Directors of the Company recommend that the holders of Company Common
Stock adopt this Agreement.
(b) The Board of Directors of the Company (at a meeting duly called and
held) has by the requisite vote of directors under the DGCL, the Standstill
Agreement and the Company's Certificate of Incorporation and By-Laws (i)
approved and declared advisable this Agreement, the Merger and the other
transactions contemplated hereby, and (ii) subject to Sections 6.01(a) and 6.04
hereof, resolved to recommend that the holders of Company Common Stock adopt
this Agreement.
SECTION 3.08. Opinion of Financial Advisor. The Special Committee and the
Board of Directors of the Company have received the opinion, dated as of the
date hereof, of Xxxxxxx, Sachs & Co. (the "Special Committee Financial
Advisor"), to the effect that, as of the date thereof, and subject to the
matters set forth therein, the Merger Consideration is fair to the holders of
the Company Common Stock from a financial point of view.
SECTION 3.09. Broker's Fees. Neither the Company nor any of its
Subsidiaries nor any of their respective officers or directors has employed any
broker or finder or incurred any liability for any broker's fees,
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commissions or finder's fees in connection with the Merger or the other
transactions contemplated hereby, except that the Company has retained the
Special Committee Financial Advisor, pursuant to compensation arrangements which
have been disclosed in writing to Parent prior to the date of this Agreement.
SECTION 3.10. Absence of Certain Changes or Events. (a) Except as
disclosed in the Company Reports (as defined in Section 3.14) filed prior to the
date of this Agreement, since December 31, 2000, no event has occurred and no
fact or circumstance has come to exist or come to be known which, directly or
indirectly, individually or taken together with all other facts, circumstances
and events (described in any paragraph of this Article III or otherwise), has
had, or is reasonably likely to have, a Material Adverse Effect with respect to
the Company.
(b) As of the date of this Agreement, except as disclosed in the Company
Reports filed prior to the date hereof or as set forth in Section 3.10 of the
Company Disclosure Schedule, since December 31, 2000, the Company and its
Subsidiaries have carried on their respective businesses in the ordinary and
usual course consistent with their past practices (excluding the incurrence of
fees and expenses of professional advisors related to this Agreement and the
transactions contemplated hereby) and, except insofar as required by a change in
GAAP or applicable regulatory accounting, there has not been any material change
in accounting methods, principles or practices by the Company or any of its
Subsidiaries.
SECTION 3.11. Legal Proceedings. (a) Except as disclosed in Company
Reports filed prior to the date of this Agreement, neither the Company nor any
of its Subsidiaries is a party to any, and there are no pending or, to the
Knowledge of the Company, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations of any
nature ("Claims and Proceedings") (i) against the Company or, to the Knowledge
of the Company, any of its Subsidiaries or (ii) as of May 6, 2001, for which, to
the Knowledge of the Company, the Company or any of its Subsidiaries has a
material obligation to indemnify any person.
(b) There is no injunction, order, judgment or decree imposed upon the
Company or, to the Knowledge of the Company, any of its Subsidiaries or the
assets of the Company or any of its Subsidiaries.
SECTION 3.12. Tax Matters. (a) The Company and each of its Subsidiaries
has duly filed all Tax returns and reports required to be filed by it, or
requests for extensions to file such returns or reports have been timely filed
and granted and have not expired, and such returns and reports are true, correct
and complete in all material respects. The Company and each of its Subsidiaries
have paid (or the Company has paid on their behalf) all Taxes that are shown as
due on such filed returns and have made provision in their financial statements
(in accordance with GAAP) for all Taxes for current periods for which the
Company or any of its Subsidiaries has not yet filed Tax returns.
(b) As used in this Agreement, the term "Taxes" includes all federal,
state, local and foreign income, franchise, property, sales, use, excise and
other taxes, including, without limitation, obligations for withholding Taxes
from payments due or made to any other person and any interest, penalties or
additions to tax.
SECTION 3.13. Employee Benefit Plans; ERISA. (a) Except as set forth in
Section 3.13(a) of the Company Disclosure Schedule, neither the Company nor any
of its Subsidiaries maintain or contribute to, or have any obligation to
contribute to, or have any liability, direct or indirect, contingent or
otherwise (including, without limitation, a liability arising out of an
indemnification, guarantee, hold harmless or similar agreement) with respect to,
any material employment, consulting, severance pay, termination pay, retirement,
deferred compensation, retention or change in control plan, program,
arrangement, agreement or commitment, or an executive compensation, incentive
bonus or other bonus, pension, stock option, restricted stock or equity-based,
profit sharing, savings, life, health, disability, accident, medical, insurance,
vacation, or other employee benefit plan, program, arrangement, agreement, fund
or commitment, including any "employee benefit plan" as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
providing benefits to any current or former employee, consultant or director of
the Company or any of its Subsidiaries or any current or former employee,
consultant or director of any entity with respect to which the Company or its
Subsidiaries is a successor (including, without limitation, (i) any written
promise or commitment, whether legally binding or not, to create any new or
modify any existing Company Benefit Plan
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that would reasonably be expected to materially increase the benefits provided
to any employee or former employee, consultant or director of the Company or any
Subsidiary thereof, and (ii) any obligation to provide health, life insurance,
or death benefits with respect to current or former employees, consultants or
directors of the Company or any of its Subsidiaries beyond their termination of
employment or service) (collectively the "Company Benefit Plans"). True and
complete copies of each Company Benefit Plan, including, but not limited to, any
trust instruments and/or insurance contracts, if any, forming a part thereof,
all amendments thereto and the most recent determination letters issued by the
Internal Revenue Service, all government and regulatory approvals received from
any foreign Regulatory Agency, the most recent summary plan descriptions
(including any material modifications) and the most recent audited financial
reports for any funded Company Benefit Plan have been supplied or made available
to Parent, including by way of documents filed with the SEC.
(b) Except as set forth in Section 3.13(b) of the Company Disclosure
Schedule, with respect to each Company Benefit Plan that is not a multiemployer
plan (within the meaning of Section 3(2) of ERISA): (i) if intended to qualify
under Section 401(a), 401(k) or 403(a) of the Code such plan has received a
favorable determination letter from the Internal Revenue Service, and the
Company is not aware of any circumstances likely to result in revocation of such
favorable determination or such qualification; (ii) it has been operated and
administered in all material respects in compliance with its terms and all
applicable laws and regulations (including but not limited to ERISA, the Code
and any relevant foreign laws and regulations); (iii) there are no material
pending or, to the Knowledge of the Company, threatened claims against, by or on
behalf of any Company Benefit Plans (other than routine claims for benefits);
and (iv) all contributions, premiums and expenses to or in respect of such
Company Benefit Plan have been timely paid in full or, to the extent not yet
due, have been accrued on the Company's consolidated financial statements,
except for any failures to make or accrue such contributions, premiums and
expenses that, individually or in the aggregate, would not reasonably be
expected to result in any material liability to the Company.
(c) With respect to each Company Benefit Plan, neither the Company nor any
of its Subsidiaries has incurred or reasonably expects to incur, either directly
or by reason of their affiliation with any "ERISA Affiliate" (defined as any
organization which is a member of a controlled group of organizations with the
Company within the meaning of Sections 414(b), (c), (m) or (o) of the Code), any
material liability under Title IV of ERISA, and neither the Company nor any of
its Subsidiaries has incurred or reasonably expects to incur, either directly or
by reason of their affiliation with any ERISA Affiliate, any material liability
under Sections 412 or 4971 of the Code.
(d) With respect to each "employee pension benefit plan" (within the
meaning of Section 3(2) of ERISA), no such plan is a "multiemployer plan"
(within the meaning of Section 3(37) of ERISA) or a "multiple employer plan"
(within the meaning of Section 413(c) of the Code).
(e) Except as set forth in Section 3.13(e) of the Company Disclosure
Schedule, the consummation of the transactions contemplated hereby, either alone
or in combination with another event (whether contingent or otherwise), will not
(i) entitle any current or former employee, consultant or director of the
Company or any Subsidiary or any group of such employees, consultants or
directors to any payment; (ii) increase the amount of compensation due to any
such employee, consultant or director; (iii) accelerate the vesting or funding
of any compensation, stock incentive or other benefit; or (iv) be reasonably
expected to result in the payment of any "parachute payment" under Section 280G
of the Code (whether or not such payment is considered to be reasonable
compensation for services rendered), except for any such parachute payments that
are not reasonably expected to result in any material liability to the Company
or in a loss of a material deduction in respect of such payments.
(f) Except as set forth in Section 3.13(f) of the Company Disclosure
Schedule, to the Knowledge of the Company, no Company Benefit Plan, or Company
or any Subsidiary, is under audit or is the subject of an audit or investigation
by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation (the "PBGC") or any other federal or state governmental agency, nor
is any such audit or investigation pending or threatened.
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(g) Except as set forth in Section 3.13(g) of the Company Disclosure
Schedule, neither the Company nor any Subsidiary maintains any plan, program or
arrangement or is a party to any contract that provides any benefits or provides
for payments to any person in, based on or measured by the value of, any equity
security of, or interest in, the Company or any Subsidiary.
SECTION 3.14. SEC Reports. No final registration statement, prospectus,
report, schedule or definitive proxy statement filed since January 1, 1999 by
the Company or any of its Subsidiaries with the SEC pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), or the Exchange Act (the
"Company Reports"), or communication mailed by the Company to its stockholders
since January 1, 1999, as of the date of filing or mailing, as the case may be,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading, except that information as of a later date (but filed before the
date hereof) shall be deemed to modify information as of an earlier date. As of
their respective dates, all Company Reports complied in all material respects
with the published rules and regulations of the SEC with respect thereto.
SECTION 3.15. Licenses; Compliance with Applicable Law. The Company and
each of its Subsidiaries hold all licenses, franchises, permits and
authorizations which are material to the lawful conduct of their respective
businesses under and pursuant to all, and have complied with and are not in
material default under any, applicable law, statute, order, rule, regulation,
policy and/or guideline of any Governmental Entity relating to the Company or
any of its Subsidiaries, and, except as disclosed in the Company Reports filed
prior to the date of this Agreement, neither the Company nor any of its
Subsidiaries has Knowledge of, or has received notice of, any violations of any
of the above.
SECTION 3.16. Certain Contracts. Except as set forth in Section 3.16 of
the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries
is a party to or bound by any Contract (a) as of the date hereof, with respect
to the employment, termination or compensation of any directors, executive
officers, key employees or material consultants (other than oral contracts of
employment at will which may be terminated without penalty and other than those
contracts which do not and, insofar as reasonably can be expected, in the future
will not, have a Material Adverse Effect with respect to the Company), (b) which
is a "material contract" (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC) that has not been filed with or incorporated by
reference in the Company Reports or (c) which contains any material non-compete
or exclusivity provisions with respect to any business or geographic area in
which the Company or any of its affiliates conducts business or which restricts
the conduct of any business by the Company or any of its affiliates in any
geographic area or requires exclusive referrals of any business. The Company has
previously made available to Parent true and correct copies of all employment,
termination and compensation agreements (including deferred compensation) with
executive officers, key employees or material consultants which are in writing
and to which the Company or any of its Subsidiaries is a party. Each contract,
arrangement, commitment or understanding of the type described in this Section
3.16, whether or not set forth in Section 3.16 of the Company Disclosure
Schedule, is referred to herein as a "Company Contract", and neither the Company
nor any of its Subsidiaries has Knowledge of, or has received notice of, any
violation of any Company Contract by any of the other parties thereto.
SECTION 3.17. Agreements with Regulatory Agencies. Except as set forth in
Section 3.17 of the Company Disclosure Schedule, neither the Company nor any of
its Subsidiaries is subject to any cease-and-desist order issued by, or is a
party to any written agreement, consent agreement or memorandum of understanding
with, or is a party to any commitment letter or similar undertaking to, or is
subject to any order or directive by, or is a recipient of any extraordinary
supervisory letter from or has adopted any board resolutions at the request of,
any Regulatory Agency or other Governmental Entity, that materially restricts
the conduct of its business or that in any manner relates to its capital
adequacy, its credit policies, its management or its business (each, whether or
not set forth in the Company Disclosure Schedule, a "Company Regulatory
Agreement"), nor has the Company or any of its Subsidiaries been advised since
January 1, 1999 by any Regulatory Agency or other Governmental Entity that it is
considering issuing or requesting any such Company Regulatory Agreement.
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SECTION 3.18. Undisclosed Liabilities. Except for those liabilities that
are fully reflected or reserved against in the financial statements included in
the Company's Annual Report on Form 10-K for the year ended December 31, 2000 or
in the unaudited financial statements referred to in clause (c) of Section 3.06,
liabilities identified in Section 3.18 of the Company Disclosure Schedule and
liabilities incurred in the ordinary course of business consistent with past
practice since December 31, 2000, neither the Company nor any of its
Subsidiaries has incurred any liability of any nature required by GAAP to be
reflected in a balance sheet prepared in accordance with GAAP.
SECTION 3.19. Environmental Matters. Except as set forth in Section 3.19
of the Company Disclosure Schedule or in the Company Reports filed prior to the
date of this Agreement, there are no legal, administrative, arbitral or other
proceedings, claims, actions, causes of action, private environmental
investigations or remediation activities or governmental investigations of any
nature seeking to impose, or that are reasonably likely to result in the
imposition, on the Company or any of its Subsidiaries of any liability or
obligation arising under common law standards relating to environmental
protections, human health or safety, or under any local, state or federal
environmental statute, regulation or ordinance, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (collectively, the "Environmental Laws"), pending or, to the
Knowledge of the Company, threatened, against the Company or any of its
Subsidiaries. To the Knowledge of the Company, there is no reasonable basis for
any such proceeding, claim, action or governmental investigation that would
impose any liability or obligation. To the Knowledge of the Company, during or
prior to the period of (i) its or any of its Subsidiaries' ownership or
operation of any of their respective properties, (ii) its or any of its
Subsidiaries' participation in the management of any property, or (iii) its or
any of its Subsidiaries' holding of a security interest or other interest in any
property, there were no releases or threatened release of hazardous, toxic,
radioactive or dangerous materials or other materials regulated under
Environmental Laws in, on, under or affecting any such property. Neither the
Company nor any of its Subsidiaries is subject to any agreement, order,
judgment, decree, letter or memorandum by or with any Governmental Entity or
third party imposing any material liability or obligation pursuant to or under
any Environmental Law.
SECTION 3.20. Transactions with Affiliates. Except as disclosed in the
Company Reports filed prior to the date hereof, during the year ended December
31, 2000 there were no transactions, agreements or arrangements between the
Company or any of its Subsidiaries, on the one hand, and the Company's
affiliates (other than Subsidiaries of the Company and Parent or persons that
are also Subsidiaries or affiliates of Parent) or other persons, on the other
hand, that would be required to be disclosed under Item 404 of Regulation S-K
under the Securities Act. Since January 1, 2001 through the date hereof, there
have been no such transactions, agreements or arrangements except in amounts and
of types consistent with those that occurred during 2000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Except as disclosed in the Parent Disclosure Schedule, Parent represents
and warrants to the Company that:
SECTION 4.01. Corporate Organization. Parent is a societe anonyme or
limited liability banking corporation duly organized and validly existing under
the laws of the Republic of France. Merger Sub is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and all of the outstanding Merger Sub Units are owned
directly or indirectly by Parent. Merger Sub has been formed solely for the
purpose of engaging in the transactions contemplated hereby, will conduct its
operations only as contemplated hereby and will engage in no other business
activities other than activities conducted in furtherance of the transactions
contemplated hereby; provided, however, that Merger Sub may incur indebtedness
that does not contravene any other provision hereof, including Section 4.04.
Parent has the requisite power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business (to the extent the concept of
"qualification to do business" exists) in each jurisdiction in which the nature
of the business conducted by it or
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the character or location of the properties and assets owned or leased by it
makes such licensing or qualification necessary. Merger Sub has the limited
liability company power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is duly
licensed or qualified to do business in each jurisdiction in which the nature of
the business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary.
SECTION 4.02. Authority; No Violation. (a) Parent has full corporate power
and authority to execute and deliver this Agreement and to consummate the Merger
and the other transactions contemplated hereby. Merger Sub has full limited
liability company power and authority to enter into and deliver this Agreement
and to consummate the Merger and the other transactions contemplated hereby.
(b) The consummation of the Merger and the other transactions contemplated
hereby has been duly and validly approved by a duly authorized committee of the
Board of Directors of Parent, and by the holder of all of the outstanding Merger
Sub Units. No other corporate proceedings on the part of Parent and no vote of
Parent's stockholders are necessary to consummate the transactions contemplated
hereby.
(c) The execution and delivery of this Agreement by Parent and Merger Sub
has been duly and validly authorized in accordance with applicable law and duly
and validly approved by all necessary action and no other proceedings on the
part of Parent or Merger Sub are necessary to approve this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Parent and Merger Sub and (assuming due
authorization, execution and delivery by the Company) constitutes a valid and
binding obligation of Parent and Merger Sub, enforceable against Parent and
Merger Sub in accordance with its terms.
(d) Neither the execution and delivery of this Agreement by Parent or
Merger Sub, nor the consummation by Parent or Merger Sub of the Merger, nor
compliance by Parent or Merger Sub with any of the terms or provisions hereof,
will (i) violate any applicable law or the memorandum and articles of
association, certificate of incorporation, bylaws or other organizational
documents of Parent or Merger Sub, as applicable, or (ii) assuming that the
consents and approvals and waiting periods referred to in Section 4.03 are duly
obtained or satisfied, violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to Parent, Merger Sub or
any of their respective Subsidiaries or any of their respective properties or
assets, or violate, conflict with, result in a breach of any provision of or the
loss of any benefit under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any Lien (or have any of
such results upon notice, or lapse of time or both) upon any of the respective
properties or assets of Parent, Merger Sub or any of their respective
Subsidiaries under, any of the terms, conditions or provisions of any Contract
to which Parent, Merger Sub or any of their respective Subsidiaries is a party,
or by which they or any of their respective properties or assets may be bound or
affected.
SECTION 4.03. Consents and Approvals. Except for (a) the requisite filings
with, notices to and approval of the Federal Reserve Board under the BHCA, (b)
the filing of any required applications or notices with the California State
Banking Department and Oregon, Washington, Idaho, Nevada, New Mexico and Hawaii
banking authorities, (c) the filing with the SEC of the Proxy Statement in
definitive form, (d) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware pursuant to the DGCL and the DLLCA, (e) any
consents, authorizations, approvals, filings or exemptions in connection with
compliance with the applicable provisions of supranational, federal, state,
local and foreign laws (including, without limitation, securities and insurance
laws) relating to the regulation of broker-dealers, investment advisers and
insurance agencies and any applicable SRO, and the rules of the NYSE and the
ParisBourse(SBF) S.A., (f) the Company Stockholder Approval, (g) the expiration
of any applicable waiting period under the HSR Act or any consents,
authorizations, approvals, filings or exemptions required by any other
applicable antitrust law or merger regulation, (h) such additional consents and
approvals set forth in Section 4.03 of the Parent Disclosure Schedule, and (i)
consents, authorizations, approvals, filings and registrations the failure of
which to obtain or make would not be reasonably likely to result, individually
or in
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the aggregate, in a Material Adverse Effect with respect to Parent, no consents,
authorizations or approvals of or filings or registrations with any Governmental
Entity or, of or with any other person by or on behalf of Parent or Merger Sub,
are necessary in connection with the execution and delivery by Parent and Merger
Sub of this Agreement and the consummation by Parent and Merger Sub of the
Merger.
SECTION 4.04. Financing. Parent has or has access to, and will make
available to Merger Sub on or prior to the Closing Date, all the funds necessary
to perform its obligations under this Agreement, including consummating the
transactions contemplated by this Agreement on the terms contemplated hereby and
paying of all of its fees and expenses relating to such transactions.
SECTION 4.05. Litigation; Regulatory Action. (a) No litigation, claim or
other proceeding before any court or governmental agency is pending against
Parent or, to its Knowledge, any of its Subsidiaries and, to its Knowledge, no
such litigation, claim or other proceeding has been threatened, in each case
that would or would reasonably be expected to have a Material Adverse Effect on
Parent.
(b) Neither Parent nor, to its Knowledge, any of its Subsidiaries or
properties, is a party to or is subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter
of similar submission to, or extraordinary supervisory letter from or has
adopted any board resolutions at the request of, any Regulatory Agency or other
Governmental Entity (each a "Parent Regulatory Agreement").
(c) Neither Parent nor, to its Knowledge, any of its Subsidiaries, has been
advised by any Regulatory Agency that such Regulatory Agency or any other
Governmental Agency is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any such Parent Regulatory
Agreement.
SECTION 4.06. Absence of Certain Changes. Except as disclosed in writing
to the Company prior to the date hereof, since December 31, 2000, (i) Parent and
its Subsidiaries have carried on their respective businesses in the ordinary and
usual course consistent with past practice and (ii) no event has occurred and no
fact or circumstance has come to exist or come to be known which, directly or
indirectly, individually or taken together with all other facts, circumstances
and events (described in any paragraph of this Article IV or otherwise), has
had, or is reasonably expected to have a Material Adverse Effect with respect to
Parent.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01. Conduct of Business Prior to the Effective Time. During the
period from and including the date of this Agreement to the Effective Time,
except as expressly contemplated or permitted by this Agreement, the Company
shall, and shall cause its Subsidiaries to, (a) conduct their business only in
the usual, regular and ordinary course consistent with past practice, (b) use
commercially reasonable best efforts to maintain and preserve intact their
business organization, employees and advantageous business relationships and
retain the services of their key officers and key employees, (c) take no
intentional action which would adversely affect or delay in any material respect
the ability of Parent, Merger Sub or the Company to obtain any Requisite
Regulatory Approvals and (d) use commercially reasonable best efforts to obtain
any third party approvals that are necessary or appropriate for the Surviving
Corporation to conduct the business of the Company and its Subsidiaries as
currently conducted following the Effective Time.
SECTION 5.02. Forbearances of the Company. During the period from the date
of this Agreement to the Effective Time, except as set forth in Section 5.02 of
the Company Disclosure Schedule or except as expressly contemplated or permitted
by this Agreement, the Company shall not, and shall cause its Subsidiaries not
to, without the prior written consent of Parent (which, except in the case of
clause (b), shall not be unreasonably withheld or delayed):
(a) other than in the ordinary course of business consistent with past
practice, incur (i) any long-term indebtedness for borrowed money or
assume, guarantee, endorse or otherwise as an accommodation become
responsible for the long-term indebtedness of any other person (other than
deposits and similar
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liabilities, indebtedness of the Company's Subsidiaries to the Company or
any of its wholly owned Subsidiaries and indebtedness under existing lines
of credit and renewals or extensions thereof), or (ii) any capital
expenditures, obligations or liabilities;
(b)(i) adjust, split, combine or reclassify any capital stock; (ii)
make, declare or pay any dividend (except (A) regular annual or quarterly
cash dividends (with record and payment dates consistent with past
practice) at a rate not in excess of $0.19 per Company Common Share per
quarter; (B) if the Effective Time is scheduled to occur on a date other
than a date the Board of Directors of the Company would normally establish
as a record date for a regular quarterly cash dividend, a dividend (1) with
a record date immediately prior to the Effective Time and (2) at a rate per
Company Common Share not in excess of the product (rounded to the nearest
$0.0001) of (x) the number of days that have or are scheduled to elapse
from (but excluding) the record date for the last regular quarterly
dividend paid by the Company to (but excluding) the date on which the
Effective Time occurs and (y) $0.00208219 (a "Pro Rata Dividend");
provided, that the Company shall consult with Parent to determine the
appropriate number of days to take into account in calculating any Pro Rata
Dividend; and (C) dividends paid in the ordinary course of business by any
wholly owned Subsidiary of the Company) or make any other distribution on,
or directly or indirectly redeem, purchase or otherwise acquire, any shares
of its capital stock or any securities or obligations convertible into or
exchangeable for any shares of its capital stock; (iii) grant any
additional Options or Restricted Shares or grant any person any right to
acquire any shares of its capital stock or any right the value of which is
based on the value of shares of its capital stock, (iv) issue any
additional shares of capital stock, other than with respect to the
exercise, conversion or settlement of Options or Restricted Shares granted
prior to the date hereof pursuant to the Company Stock Plans and issuances
by a wholly owned Subsidiary of the Company of its capital stock to the
Company; or (v) enter into any agreement, understanding or arrangement with
respect to the voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of
its material properties or assets, including, without limitation, capital
stock in any Significant Subsidiaries of the Company, to any person other
than a direct or indirect wholly owned Subsidiary, or cancel or release any
material indebtedness to any such person or any claims held by any such
person, except (i) internal reorganizations, liquidations or consolidations
involving existing Subsidiaries of the Company, (ii) subject to Section
6.02(c), as may be required by law to consummate the transactions
contemplated hereby, (iii) other activities in the ordinary course of
business consistent with past practice or (iv) pursuant to contracts or
agreements in force at the date of this Agreement;
(d) except for transactions in the ordinary course of business
consistent with past practice, make any material investment either by
purchase of stock or securities, contributions to capital, property
transfers, or purchase of any property or assets of any other individual,
corporation, limited partnership or other entity other than a wholly owned
Subsidiary; provided, however, that the foregoing shall not prohibit (A)
internal reorganizations, liquidations or consolidations involving existing
Subsidiaries or (B) foreclosures and other debt-previously-contracted
acquisitions in the ordinary course of business;
(e) except for transactions in the ordinary course of business
consistent with past practice, enter into or terminate any material lease,
contract or agreement, or make any material change in any of its material
leases, contracts or agreements, other than renewals of leases, contracts
or agreements without material changes of terms;
(f) other than in the ordinary course of business consistent with past
practice or as required by law or contracts in effect as of the date hereof
set forth in Section 3.13 or Section 5.02 of the Company Disclosure
Schedule, increase in any manner the wages, salaries, compensation, pension
or other fringe benefits or perquisites of any current or former employees,
consultants or directors of the Company or any of its Subsidiaries, or
vest, fund or pay any pension or retirement allowance other than as
required by any existing Company Benefit Plans disclosed in the Company
Disclosure Schedule to any such current or former employees, consultants or
directors or become a party to, amend or commit itself to any pension,
retirement, profit-sharing or welfare benefit plan or agreement or
employment, severance, consulting, retention, change in control,
termination, deferred compensation or incentive pay agreement with or for
the benefit of any current or former employee, consultant or director or,
except as expressly contemplated by this Agreement, accelerate the vesting,
funding or payment of any compensation payment or benefit (except pursuant
to the mandatory terms of existing plans or agreements disclosed on the
Company Disclosure Schedule);
(g) settle any material claim, action or proceeding involving money
damages or waive or release any material rights or claims, except in the
ordinary course of business consistent with past practice;
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(h) change its methods of accounting in effect at December 31, 2000,
except as required by changes in GAAP, or change any of its methods of
reporting material items of income and deductions for Tax purposes from
those employed in the preparation of the Tax returns of the Company for the
taxable years ending December 31, 2000 and 1999, except as required by
changes in law or regulation or as set forth in the Company Disclosure
Schedule;
(i) adopt or implement any amendment to its articles or certificate of
incorporation, articles of association, bylaws (or similar documents) or
any plan of consolidation, merger or reorganization other than in
accordance with the provisions of this Agreement;
(j) take any intentional action that is intended or may reasonably be
expected to result in any of the conditions to the Merger set forth in
Article VII not being satisfied, except, in every case, as may be required
by applicable law, regulation or safe and sound banking practices; or
(k) agree to, or make any commitment to, take any of the actions
prohibited by this Section 5.02.
SECTION 5.03. Covenants of Parent. During the period from and including
the date of this Agreement to the Effective Time, except as expressly
contemplated by this Agreement, Parent shall, and shall cause its Subsidiaries
to, (a) not take, or agree to, or make any commitment to take, any action,
without the prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed), that is intended or may reasonably be
expected to result in any of the conditions to the Merger set forth in Article
VII not being satisfied, except, in every case, as may be required by applicable
law, regulation or safe and sound banking practices, (b) take no intentional
action which would adversely affect or delay in any material respect, the
ability of Parent, Merger Sub or the Company to obtain any Requisite Regulatory
Approval and (c) use its reasonable best efforts to obtain any third party
approvals that are necessary or appropriate for the Surviving Corporation to
conduct the business of the Company and its Subsidiaries as currently conducted
following the Effective Time.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Stockholders' Meeting. (a) Subject to the provisions of
Section 6.04 and Section 8.01, the Company shall, consistent with applicable
law, call and hold a meeting of its stockholders (the "Company Meeting") as
promptly as practicable following the date hereof for the purpose of voting upon
the adoption of this Agreement. The Company, through its Board of Directors,
shall recommend to its stockholders adoption of this Agreement, which
recommendation shall be contained in the Proxy Statement (as defined below);
provided, however, that the Board of Directors of the Company (acting upon the
recommendation of the Special Committee) may withdraw, modify or change its
recommendation to the stockholders of the Company if the Board of Directors of
the Company (acting upon the recommendation of the Special Committee) determines
in good faith, following consultation with its outside counsel as to legal
matters, that failure to do so would be reasonably likely to constitute or
result in a breach of its fiduciary duties under applicable law. The Company
shall use reasonable best efforts to solicit from the holders of shares of
Company Common Stock proxies in favor of the adoption of this Agreement, and
shall take all other action reasonably necessary or advisable to secure the vote
or consent of such holders required by the DGCL unless the Board of Directors of
the Company (acting upon the recommendation of the Special Committee) has
withdrawn, modified or changed its recommendation in accordance with the
immediately preceding sentence.
(b) Parent shall, and shall cause its Subsidiaries, to vote (or consent
with respect to) any shares of Company Common Stock and Class A Common Stock
beneficially owned by it, or with respect to which it has the power (by
agreement, proxy or otherwise) to vote or cause to be voted (or to provide a
consent), in favor of the adoption of this Agreement at any meeting of the
stockholders of the Company at which this Agreement shall be submitted for
adoption and at all adjournments or postponements thereof (or, if applicable, by
any action of the stockholders of the Company by consent in lieu of a meeting);
provided, however, that nothing in this Agreement shall be deemed to require
Parent or any of its Subsidiaries to take any action inconsistent with its
obligations in a fiduciary or similar capacity with respect to Fiduciary Shares.
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(c) The foregoing provisions of this Section 6.01 apply to the members of
the Board of Directors of the Company in their capacities as such and not in any
other capacity.
SECTION 6.02. Regulatory Matters. (a) Parent, Merger Sub and the Company
shall cooperate in preparing, and the Company shall, as soon as practicable,
file (after providing Parent and Merger Sub with a reasonable opportunity to
review and comment thereon) preliminary proxy materials (including, without
limitation, a Schedule 13E-3 filing, if required to be filed under the Exchange
Act) relating to the Company Meeting (together with any amendments thereof or
supplements thereto, the "Proxy Statement") with the SEC and shall use its
commercially reasonable efforts to respond to any comments of the SEC (after
providing Parent and Merger Sub with a reasonable opportunity to review and
comment thereon) and to cause the Proxy Statement to be mailed to the Company's
stockholders as promptly as practicable after responding to all such comments to
the satisfaction of the SEC staff. The Company shall notify Parent and Merger
Sub promptly of the receipt of any comments from the SEC and of any request by
the SEC for amendments or supplements to the Proxy Statement or for additional
information and shall supply Parent and Merger Sub with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC, on the other hand, with respect to the Proxy Statement or the
transactions contemplated hereby. The Company will cause the Proxy Statement
(other than portions relating to Parent or Merger Sub) to comply in all material
respects with the applicable provisions of the Exchange Act and the rules and
regulations thereunder applicable to the Proxy Statement and the solicitation of
proxies for the Company Meeting (including any requirement to amend or
supplement the Proxy Statement). Merger Sub and Parent shall cooperate with the
Company in the preparation of the Proxy Statement. Parent and Merger Sub will
cause those portions of the Proxy Statement relating to Parent and Merger Sub to
comply in all material respects with the applicable provisions of the Exchange
Act and the rules and regulations thereunder applicable to the Proxy Statement.
Without limiting the generality of the foregoing, each party shall furnish to
the other such information relating to it and its affiliates and the
transactions contemplated hereby and such further and supplemental information
as may be reasonably requested by the other party and shall promptly notify the
other party of any change in such information. Each of the Company, Parent and
Merger Sub agrees, as to itself and its Subsidiaries, that none of the
information supplied or to be supplied by it for inclusion or incorporation by
reference in the Proxy Statement and any amendment or supplement thereto will,
at the date of mailing to stockholders and at the time of the Company Meeting,
contain (i) any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any statement which, at the time and in the light
of the circumstances under which such statement is made, will be false or
misleading with respect to any material fact, or which will omit to state any
material fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier statement in the
Proxy Statement or any amendment or supplement thereto. If at any time prior to
the Company Meeting there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, the Company shall promptly
prepare and mail to its stockholders such an amendment or supplement; provided,
that no such amendment or supplement to the Proxy Statement will be made by the
Company without providing Parent and Merger Sub a reasonable opportunity to
review and comment thereon.
(b) Subject to Section 6.01(a) hereof and without limiting its rights under
Section 8.01(h) hereof, the Company shall include in the Proxy Statement the
recommendation of the Company's Board of Directors that the stockholders of the
Company adopt this Agreement.
(c) The parties hereto shall cooperate with each other and use their
commercially reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, to
obtain as promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental Entities which are
necessary or advisable to consummate the transactions contemplated hereby, and
to comply fully with the terms and conditions of all such permits, consents,
approvals and authorizations of all such Governmental Entities; provided that
Parent and Merger Sub shall not be obligated to agree to any Burdensome
Condition (as defined below). Parent, the Company and Merger Sub shall, to the
extent practicable, consult each other on, in each case subject to applicable
laws relating to the exchange of information, all the information relating to
the Company, Merger Sub or Parent, as the case
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may be, and any of their respective Subsidiaries, which appear in any filing
made with, or written materials submitted to, any third party or any
Governmental Entity in connection with the transactions contemplated hereby. In
exercising the foregoing right, each of the parties hereto shall act reasonably
and as promptly as practicable. The parties hereto agree that they will consult
with each other with respect to the obtaining of all permits, consents,
approvals and authorizations of all third parties and Governmental Entities
necessary or advisable to consummate the transactions contemplated hereby and
each party will keep the other apprised of the status of matters relating to
completion of the transactions contemplated hereby. For purposes of this
Agreement, "Burdensome Condition" means any conditions, restrictions or
requirements which the Board of Directors of Parent reasonably determines would,
individually or in the aggregate, (a) reduce the benefits of the Merger to such
a degree that Parent would not have entered into this Agreement had such
conditions, restrictions or requirements been known at the date hereof or (b)
have, or would reasonably be expected to have, a material and adverse effect on
the Surviving Corporation following the Effective Time.
(d) Parent, Merger Sub and the Company shall, upon request, furnish each
other with all information concerning themselves, their Subsidiaries, directors,
officers and stockholders and such other matters as may be reasonably necessary
or advisable in connection with any statement, filing, notice or application
made by or on behalf of Parent, Merger Sub, the Company or any of their
respective Subsidiaries to any Governmental Entity in connection with the Merger
and the other transactions contemplated hereby.
SECTION 6.03. Access to Information; Confidentiality. (a) From the date
hereof to the Effective Time, the Company shall (and shall cause each of its
Subsidiaries to) provide to Parent and Merger Sub (and their respective
officers, directors, employees, accountants, consultants, legal counsel, agents
and other representatives, collectively, "Representatives") (i) reasonable
access, during normal business hours and in a manner so as to not unduly
interfere with the Company's business, to all properties, offices and other
facilities, information, books, records and documents which Parent or Merger Sub
may reasonably request regarding the business, properties, contracts, assets,
liabilities, employees and other aspects of the Company or its Subsidiaries and
(ii) reasonable access at reasonable times upon prior notice to the officers,
employees and agents of the Company and its Subsidiaries.
(b) Notwithstanding any other provision in this Agreement, the Company and
its Subsidiaries shall not be required to provide access to or disclose
information where such access or disclosure would violate or prejudice the
rights of its customers, jeopardize the attorney-client privilege of the entity
in control or possession of such information or contravene any law, rule,
regulation, order, judgment or decree, or any binding agreement entered into
prior to the date of this Agreement. In any such event the parties will make
appropriate substitute disclosure arrangements to the extent possible in the
circumstances.
(c) No investigation by any party, whether prior to the execution of this
Agreement or pursuant to this Section 6.03, shall affect any representation or
warranty in this Agreement of any party hereto or any condition to the
obligations of the parties hereto.
(d) For a period of two years from the date hereof, Parent shall, and shall
cause its Subsidiaries and its and their respective Representatives, to keep
confidential any and all Confidential Information furnished by or on behalf of
the Company or any of its Subsidiaries pursuant to this Agreement. "Confidential
Information" means any information furnished pursuant to this Agreement,
regardless of the form in which such information is communicated or maintained,
and all notes, reports, analyses, compilations, studies, files or other
documents or material, whether prepared by the Company, Parent, Merger Sub or
others, which are based on, contain or otherwise reflect such information;
provided, that "Confidential Information" does not include information that (i)
is or becomes available to the public, other than as a result of a disclosure in
breach of this Section 6.03, (ii) was available, or has become available, to
Parent, Merger Sub or any of their respective Representatives, on a
non-confidential basis from a source other than the Company or its
Representatives; provided, that such source was not, to the Knowledge of Parent
or Merger Sub or such Representatives, prohibited from disclosing such
information by a legal, contractual or fiduciary obligation owed to the Company,
or (iii) Parent or Merger Sub or any of their respective Representatives
independently developed without reference to Confidential Information.
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(e) Notwithstanding anything in this Agreement to the contrary, in the
event that any party to this Agreement is legally required pursuant to
applicable law or regulation or regulatory, legal or judicial process (including
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process), to disclose Confidential Information,
such party will provide the other parties with prompt notice of such event so
that the other parties may seek a protective order or other appropriate remedy
or waive compliance with Section 6.03(d). In the event any party determines to
seek such protective order or other remedy, the other parties will cooperate
with such party in seeking such protective order or other remedy. In the event
that such protective order or other remedy is not obtained and disclosure of
Confidential Information is required, or a party grants a waiver hereunder,
Parent or Merger Sub, or any of their respective Representatives, as the case
may be, (i) may, without liability hereunder furnish that portion (and only that
portion) of the Confidential Information which it is legally required to
disclose and (ii) will exercise its commercially reasonable best efforts to have
confidential treatment accorded any Confidential Information so furnished.
SECTION 6.04. Other Offers. The Company and its Subsidiaries will not,
directly or indirectly, and will use their reasonable best efforts to cause
their Representatives not to (a) take any action to solicit, initiate or
knowingly encourage any Acquisition Proposal (as defined below) or (b) engage in
negotiations with, or disclose any nonpublic information relating to the Company
or any of its Subsidiaries or afford access to the properties, books or records
of the Company or any of its Subsidiaries to, any person that may, to the
Company's Knowledge, be considering making, or has made, an Acquisition
Proposal; provided that the Company may, in response to an unsolicited bona fide
written proposal from a third party regarding an Acquisition Proposal, engage in
the activities specified in clause (b) of this Section 6.04, if (i) following
consultation with outside counsel, the Board of Directors of the Company (acting
upon the recommendation of the Special Committee) determines in good faith that
failure to do so would be reasonably likely to constitute or result in a breach
of its fiduciary duties under applicable law, (ii) following consultation with
the Special Committee Financial Advisor, the Board of Directors of the Company
(acting upon the recommendation of the Special Committee) determines in good
faith that such Acquisition Proposal constitutes or has a reasonable likelihood
of resulting in a Superior Proposal, and (iii) the Company has received from
such third party an executed confidentiality agreement with terms not materially
less favorable to the Company than those contained in Section 6.03. The Company
will as promptly as practicable (and in no event later than one business day
after the relevant event) notify Parent in writing (which notice shall identify
the person making the Acquisition Proposal or request for information and set
forth the material terms thereof) after having received any Acquisition
Proposal, or request for nonpublic information relating to the Company or any of
its Subsidiaries or for access to the properties, books or records of the
Company or any of its Subsidiaries by any person who is, to the Company's
Knowledge, considering making or has made an Acquisition Proposal. The Company
will keep Parent currently informed of the status and material developments and
terms of any such Acquisition Proposal or request and any related material
discussions or negotiations. The Company and its Subsidiaries shall, and shall
use their reasonable best efforts to cause their respective Representatives to,
cease immediately and cause to be terminated all activities, discussions or
negotiations, if any, with any persons conducted heretofore with respect to any
Acquisition Proposal. Nothing in this Section 6.04 shall prohibit the Company,
its Board of Directors or the Special Committee from taking and disclosing to
the stockholders of the Company a position with respect to an Acquisition
Proposal by a third party to the extent required under the Exchange Act or from
making such disclosure to the stockholders of the Company which, after
consultation with outside counsel of the Company, the Special Committee (or the
Board of Directors of the Company acting upon the recommendation of the Special
Committee) determines is required under applicable law; provided that nothing in
this sentence shall affect the obligations of the Company, its Board of
Directors or the Special Committee under any other provision of this Agreement.
For purposes of this Agreement, "Acquisition Proposal" means any offer or
proposal (other than an offer or proposal by or on behalf of Parent or its
affiliates) for, or any indication of interest in (w) a merger or consolidation,
or any similar transaction, involving the Company or any Significant Subsidiary
of the Company, (x) a purchase, lease or other acquisition or assumption of all
or substantially all of the assets of the Company or all or substantially all of
the assets or deposits of any Significant Subsidiary of the Company, (y) a
purchase or other acquisition (including by way of merger, consolidation, share
exchange, tender offer or otherwise) of
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beneficial ownership (the term "beneficial ownership" for purposes of this
Agreement having the meaning assigned thereto in Section 13(d) of the Exchange
Act, and the rules and regulations thereunder) of securities representing 25% or
more of the voting power of the Company or 25% or more of the voting power of
any Significant Subsidiary of the Company, or (z) any substantially similar
transaction.
SECTION 6.05. Indemnification and Insurance. (a) The Surviving Corporation
shall, for six years from and after the Effective Time, maintain in effect the
indemnification, expense advancement and exculpation obligations set forth in
the Company's or any Subsidiary's Certificate of Incorporation and the Company's
By-Laws, as amended, or other organizational documents, in each case as of the
date of this Agreement as continuing obligations of the Surviving Corporation
and such provisions shall not be amended, repealed or otherwise modified during
such period in any manner that would adversely affect the rights thereunder of
the individuals who on or at any time prior to the Effective Time were entitled
to rights thereunder with respect to matters occurring prior to the Effective
Time. In addition, Merger Sub and the Company agree that the indemnification and
advancement obligations of the Company or any Subsidiary as set forth in
indemnification agreements to which it is a party shall be continuing
obligations of the Surviving Corporation or such Subsidiary, as applicable, and
shall not be amended, repealed or otherwise modified after the Effective Time,
except as permitted by the terms and provisions of those agreements.
(b) The Surviving Corporation and the Company shall maintain in effect, for
six years from and after the Effective Time, directors' and officers' liability
insurance policies covering the persons who are currently covered in their
capacities as directors and officers (the "Covered Parties") by the Company's
current directors' and officers' policies and on terms not materially less
favorable than the existing insurance coverage with respect to matters occurring
at or prior to the Effective Time; provided, however, in the event the annual
premium for such coverage exceeds an amount equal to 225% of the last annual
premium paid immediately prior to the date hereof by the Company for such
coverage, the Surviving Corporation shall obtain as much comparable insurance as
possible for an annual premium equal to 225% of the last annual premium paid
immediately prior to the date hereof by the Company. The provisions of the
immediately preceding sentence shall be deemed to have been satisfied if prepaid
policies have been obtained by the Company prior to the Closing for purposes of
this Section 6.05, which policies provide such directors and officers with
coverage for an aggregate period of six years with respect to claims arising
from facts or events that occurred on or before the Effective Time, including,
without limitation, in respect of the transactions contemplated by this
Agreement; provided, that the Company shall not purchase any such policies if
the cost thereof would exceed the amount specified in the preceding sentence and
shall consult with Parent prior to purchasing any such policy in order to
determine the most cost-effective and efficient means of obtaining such
coverage. If such prepaid policies have been obtained by the Company prior to
the Closing, Parent shall and shall cause the Surviving Corporation to maintain
such policies in full force and effect, and continue to honor the Company's
obligations thereunder. If the Surviving Corporation or any of its successors
and assigns (i) consolidates with or merges with or into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers or conveys all or substantially all of
its properties and assets to any person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of the Surviving Corporation assume the obligations set forth in this
Section 6.05.
(c) In addition to, and not in lieu of the foregoing, Merger Sub agrees
that Surviving Corporation shall indemnify, defend (with mutually acceptable
counsel) and hold harmless all current and former officers and directors of the
Company and its Subsidiaries (the "Indemnified Parties") to the fullest extent
permitted by the DGCL, as amended from time to time, from and against all
liabilities (including amounts paid in settlement; provided the Surviving
Corporation has approved such settlement), costs, expenses and claims (including
without limitation reasonable legal fees and disbursements, which shall be paid,
reimbursed or advanced by the Surviving Corporation in advance of the final
disposition thereof arising out of actions taken prior to the Effective Time in
performance of their duties as directors or officers of the Company or any
Subsidiary; provided, however, that the Surviving Corporation's obligations to
the Indemnified Parties under this Section 6.05(c) shall not be effective until
consummation of the Merger.
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(d) In the event that any action, suit, proceeding or investigation
relating thereto or to the transactions contemplated by this Agreement is
commenced, whether before or after the Effective Time, the parties hereto agree
to cooperate and use their respective reasonable efforts to vigorously defend
against and respond thereto.
(e) Following the Effective Time Parent shall cause Merger Sub and the
Surviving Corporation to perform their obligations under this Section 6.05.
SECTION 6.06. Notification of Certain Matters. From and after the date of
this Agreement until the Effective Time, each party hereto shall promptly notify
the other parties hereto of:
(a) any change or event, or series of changes or events, having, or
which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on it or would be reasonably likely to
cause any of the conditions in Article VII not to be satisfied or to cause
the satisfaction thereof to be materially delayed;
(b) the receipt of any material notice or other material communication
from any person alleging that the consent of such person is or may be
required in connection with the transactions contemplated hereby;
(c) the receipt of any material notice or other material communication
from any Governmental Entity in connection with the transactions
contemplated hereby; and
(d) any actions, suits, claims, investigations or proceedings
commenced or, to the Knowledge of the party, threatened against Parent,
Merger Sub or the Company which seeks to prohibit or prevent consummation
of the transactions contemplated hereby;
in each case, to the extent such event or circumstance is or becomes known to
the party required to give such notice; provided, however, that the delivery of
any notice pursuant to this Section 6.06 shall not be deemed to be an amendment
of this Agreement or any Section in the Company Disclosure Schedule or the
Parent Disclosure Schedule, as the case may be, and shall not cure any breach of
any representation or warranty requiring disclosure of such matter prior to the
date of this Agreement.
SECTION 6.07. Public Announcements. Parent, Merger Sub and the Company
shall use their reasonable best efforts to consult with each other before
issuing any press release or otherwise making any public statements with respect
to this Agreement or any of the transactions contemplated hereby. Prior to the
Closing, Parent, Merger Sub and the Company shall not issue any such press
release or make any such public statement without the prior consent of the other
parties (which consent shall not be unreasonably withheld or delayed), except as
may be required by law or regulation or any listing agreement with the NYSE or
any national or non-U.S. securities exchange to which Parent or the Company is a
party and, in such case, shall use their reasonable best efforts to consult with
all the parties hereto prior to such release or statement being issued. The
parties shall agree on the text of a joint press release by which Parent, Merger
Sub and the Company will announce the execution of this Agreement.
SECTION 6.08. Exchange Act and NYSE Filings. Unless an exemption shall be
expressly applicable, or unless Parent, Merger Sub or the Company, as the case
may be, agrees otherwise in writing, Parent, Merger Sub and the Company and
their respective affiliates will timely file with the SEC and the NYSE all
reports required to be filed pursuant to the rules and regulations of the SEC
and NYSE (including, without limitation, all required financial statements).
Such reports and other information shall comply in all material respects with
all of the requirements of the SEC and NYSE rules and regulations, and when
filed, will not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 6.09. Reasonable Best Efforts. Subject to the terms and conditions
hereof, each of the Parent, Merger Sub and the Company will use their reasonable
best efforts to take all action necessary and to do all things necessary, proper
or desirable, or advisable under applicable laws, so as to permit the
consummation of the Merger as promptly as practicable and otherwise to enable
the consummation of the transactions contemplated hereby.
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SECTION 6.10. Performance by Merger Sub. Parent shall cause Merger Sub to
perform its obligations hereunder.
SECTION 6.11. Takeover Statutes. The Company will take all steps necessary
to exempt (or continue the exemption of) the Merger, this Agreement and the
transactions contemplated hereby from, or if necessary challenge the validity or
applicability of, any applicable "moratorium", "control share", "fair price" or
other anti-takeover laws and regulations of any state or, upon the reasonable
request of Parent, any non-U.S. jurisdiction, as now or hereafter in effect.
SECTION 6.12. Standstill Agreement. Notwithstanding Section 2.2 of the
Standstill Agreement, Parent or any of its Subsidiaries may take any and all
action necessary or, in the reasonable judgment of Parent (subject to the prior
approval of the Company, which shall not be unreasonably withheld or delayed),
desirable in order to fulfill any and all express obligations and rights under
this Agreement, including, without limitation, pursuant to Section 6.01(b) and
Section 8.01(h) hereof and to make public announcements or solicit proxies in
response to any Acquisition Proposal made to the Company. The Standstill
Agreement shall terminate automatically at the Effective Time. Except as
provided in this Section 6.12, nothing in this Agreement shall be deemed to be a
waiver, modification or amendment of the Standstill Agreement or any provision
of the Company's Certificate of Incorporation or By-Laws.
SECTION 6.13. Employee Benefits. (a) From and after the Effective Time,
Parent shall, or shall cause the Surviving Corporation to, recognize prior
actual and credited service recognized under the plans of the Company or any of
its Subsidiaries of each employee of the Company or any of its Subsidiaries as
of the Effective Time (the "Company Employees") as service under the employee
benefit plans of Parent or its Subsidiaries for all purposes (other than for
purposes of benefit accruals) in which such Company Employee is eligible to
participate following the Effective Time, it being intended that such credits of
service shall not result in duplication of benefits under such plans.
(b) Parent shall maintain, or shall cause the Surviving Corporation to
maintain, employee benefit plans, programs, policies and arrangements for
Company Employees which provide benefits that are no less favorable in the
aggregate to those provided under the applicable employee benefit plans (as
defined in Section 3(3) of ERISA (excluding plans exempt under Section 201(2) of
ERISA)) of the Company and its Subsidiaries generally available to Company
Employees in effect immediately prior to the Effective Time until the earlier of
(i) two years after the Effective Time and (ii) the time that Parent or its
Subsidiaries makes available to such Company Employees employee benefit plans,
programs, policies and arrangements that are no less favorable in the aggregate
than are provided to similarly situated employees of Parent or its Subsidiaries
in the applicable jurisdiction. Any such plans, programs, policies and
arrangements, and any awards thereunder to the extent not paid in connection
with the Merger, that currently provide for benefits based on performance
targets, including without limitation the Long-Term Incentive Plan and the
Incentive Plan for Key Executives, shall be amended by Parent in consultation
with the Chairman and Chief Executive Officer of the Company as soon as
practicable following the Effective Time to reflect new and reasonable
performance targets. Notwithstanding the provisions of this Section 6.13(b),
neither Parent nor the Surviving Corporation shall be required to maintain any
such employee benefit plan, program, policy or arrangement if adjustment to such
plan, program, policy or arrangement would be necessary or desirable under the
Code or any similar law.
(c) From and after the Effective Time, Parent shall, or shall cause the
Surviving Corporation to, (i) give credit for all current year deductibles,
co-payments and annual out-of-pocket limits paid or incurred by any Company
Employee in respect of claims incurred by such Company Employee during the
portion of the current calendar year prior to the Effective Time, and (ii) waive
any pre-existing conditions provisions under any group health plans of Parent or
its Subsidiaries covering the Company Employees and their eligible dependents to
the same extent that such provisions were waived with respect to such Company
Employees and their eligible dependents pursuant to the terms of the group
health plans of the Company immediately prior to the Effective Time (the
"Company Group Health Plans") and to the extent that such Company Employees and
their eligible dependents were covered under the Company Group Health Plans.
(d) Parent intends to provide, after the Closing, (i) an opportunity for
senior executives of the Surviving Corporation to participate in a Parent stock
option program as may be in effect at such time, at the same level
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as similarly situated employees of Parent participate and (ii) an opportunity
for other salaried employees (not including such senior executives) of the
Surviving Corporation to participate in a Parent discounted stock purchase
program as may be in effect at such time (together with such stock option
program, "Parent Equity Programs"); provided that, in each case, any awards
granted under the Parent Equity Programs will be subject to a determination by
Parent that such awards will not subject Parent or any of its Subsidiaries to
additional or different SEC reporting requirements than the requirements to
which Parent or any of its Subsidiaries are currently subject, including,
without limitation, a requirement that Parent reconcile its financial statements
in accordance with GAAP. Awards granted under the Parent Equity Programs will be
determined by Parent in consultation with the Chief Executive Officer of the
Surviving Corporation.
(e) As of the Effective Time, Parent shall cause the Surviving Corporation
to expressly assume the BancWest Corporation Deferred Compensation Plan (in
accordance with Section 4.4 of such plan), the BancWest Corporation Excess
Benefit Plan (in accordance with Section 6.4 of such plan), the Supplemental
Xxxxx Trust Plan (in accordance with Section 5.4 of such plan) and the BancWest
Supplemental Executive Retirement Plan (in accordance with Section 4.3 of such
plan) and all obligations and liabilities thereunder, in accordance with the
terms of such plans.
(f) At the Effective Time, the maximum target value attainable under all
outstanding Awards (as defined in the BancWest Corporation Long Term Incentive
Plan (the "Long Term Incentive Plan")) outstanding less than six months shall be
deemed to have been fully earned, and all such Awards shall be paid as soon as
practicable after the Effective Time to the holders of such Awards (reduced by
all applicable withholding taxes and other similar charges). All other
outstanding Awards shall be paid in accordance with the Long Term Incentive Plan
as soon as practicable after the Effective Time.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01. Conditions to Each Party's Obligation To Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Stockholder Approval. This Agreement shall have been adopted by
the affirmative vote of (i) holders of a majority of the outstanding
Company Common Shares, in accordance with the DGCL and the Company's
Certificate of Incorporation and (ii) holders of Company Common Shares
constituting no less than two-thirds of the Company Common Shares
outstanding and entitled to vote at the Company Meeting.
(b) Other Approvals. All regulatory approvals and non-objections
required to consummate the Merger shall have been obtained, and all
statutory waiting periods shall have expired (including, if applicable, the
expiration or termination of any waiting period under the HSR Act or any
other applicable antitrust laws or merger regulations), other than
regulatory approvals or non-objections, or the expiration of waiting
periods the failure to be obtained or to expire which would not reasonably
be expected to have a material adverse effect on the consummation of the
Merger or on the Surviving Corporation following the Effective Time (such
approvals, non-objections and the expiration of all such waiting periods
being referred to herein as the "Requisite Regulatory Approvals"), and all
such Requisite Regulatory Approvals shall be in full force and effect.
(c) No Injunctions or Restraints; Illegality. No order, injunction or
decree issued by any court or agency of competent jurisdiction or other
legal restraint or prohibition (an "Injunction") preventing the
consummation of the Merger shall be in effect. No statute, rule,
regulation, order, injunction or decree shall have been enacted, entered,
promulgated or enforced by any Governmental Entity which prohibits or makes
illegal the consummation of the Merger or would constitute a Burdensome
Condition.
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SECTION 7.02. Conditions to Obligations of Parent and Merger Sub. The
obligation of each of Parent and Merger Sub to consummate the Merger is also
subject to the satisfaction or waiver by Parent at or prior to the Effective
Time of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth
in Section 2.06(b), the representations and warranties of the Company set
forth in this Agreement shall be true and correct in all respects as of the
Closing Date (except to the extent such representations and warranties
expressly speak as of a specified earlier date, in which case such
representations and warranties shall be true as of such earlier date) as
though made on and as of the Closing Date; and Parent shall have received a
certificate signed on behalf of the Company by the chief executive officer
of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects each of the obligations required to be
performed by the Company under this Agreement on or prior to the Closing
Date and Parent shall have received a certificate signed on behalf of the
Company by the chief executive officer of the Company to such effect.
(c) Approvals. All third party approvals (other than the Requisite
Regulatory Approvals) that are necessary for the conduct, immediately
following the Effective Time, by the Surviving Corporation of the business
of the Company and its Subsidiaries, substantially as currently conducted
(except for any such approval the failure of which to obtain would not
result in a Material Adverse Effect on the Surviving Corporation) shall
have been obtained and shall remain in full force and effect.
(d) No Burdensome Condition. No Requisite Regulatory Approval shall
have imposed any Burdensome Condition.
SECTION 7.03. Conditions to Obligations of the Company. The obligation of
the Company to consummate the Merger is also subject to the satisfaction or
waiver by the Company at or prior to the Effective Time of the following
conditions:
(a) Representations and Warranties. Subject to the standard set forth
in Section 2.06(b), the representations and warranties of Parent and Merger
Sub set forth in this Agreement shall be true and correct, as of the
Closing Date (except to the extent such representations and warranties
speak as of a specified earlier date, in which case such representations
and warranties shall be true as of such earlier date) as though made on and
as of the Closing Date; and the Company shall have received a certificate
signed on behalf of each of Parent and Merger Sub by an executive officer
of Parent and Merger Sub, as the case may be, to such effect.
(b) Performance of Obligations of Parent. Each of Parent and Merger
Sub shall have performed in all material respects each of the obligations
required to be performed by it under this Agreement at or prior to the
Closing Date and the Company shall have received a certificate signed on
behalf of each of Parent and Merger Sub by an executive officer of Parent
and Merger Sub, as the case may be, to such effect.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time, notwithstanding any
requisite adoption of this Agreement by the stockholders of the Company:
(a) by mutual written consent of the Company (provided that such
termination has been approved by the Special Committee) and Parent;
(b) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent if any Governmental Entity
which must grant or satisfy, as the case may be, a Requisite Regulatory
Approval has denied approval of the Merger and such denial has become final
and nonappealable, or any Governmental Entity of competent jurisdiction
shall have issued a final nonappeal-
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able injunction permanently enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement; provided,
however, that the right to terminate this Agreement under this Section
8.01(b) shall not be available to any party whose failure to comply with
Section 6.02(c) has been the primary cause of such action;
(c) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent if the Merger shall not have
been consummated on or before January 30, 2002, unless the failure of the
Closing to occur by such date shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth herein;
(d) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent if there shall have been a
material breach of any of the covenants or agreements or any of the
representations or warranties set forth in this Agreement on the part of
the Company (in the case of Parent) or Parent or Merger Sub (in the case of
the Company), which breach is not cured, in the case of a breach of Section
6.04, within 5 days and, in all other cases, within 30 days following
written notice to the party committing such breach, or which breach, by its
nature or timing, cannot be cured prior to the date referred to in Section
8.01(c); provided that such breach, if occurring or continuing on the
Closing Date, would constitute, individually or in the aggregate with other
such breaches occurring prior to such time and then continuing, the failure
of the conditions set forth in Sections 7.02(a), 7.02(b), 7.03(a) or
7.03(b), as applicable;
(e) by either the Company (provided that such termination has been
approved by the Special Committee) or Parent, if the Company Meeting shall
have been held and the holders of Company Common Shares shall have failed
to adopt this Agreement by the vote specified in Section 7.01(a) at such
meeting (including any adjournment or postponement thereof in accordance
with applicable law); provided, that Parent shall not have the right to
terminate this Agreement under this Section 8.01(e) if Parent has failed to
comply with Section 6.01(b);
(f) by Parent if the Special Committee or the Board of Directors of
the Company (by a vote or consent of a majority of the non-Class A
directors then in office) shall have (i) withdrawn or modified in a manner
adverse to Parent its favorable recommendation of this Agreement, or (ii)
recommended any Acquisition Proposal to the stockholders of the Company;
(g) by Parent if any Governmental Entity which must grant or satisfy,
as the case may be, a Requisite Regulatory Approval has granted such
approval subject to a Burdensome Condition, and such grant and related
Burdensome Condition have become final and nonappealable; and
(h) by the Company if the Board of Directors of the Company (acting
upon the recommendation of the Special Committee) shall concurrently with
such termination authorize the Company to enter into an agreement with
respect to an Acquisition Proposal; provided, however, that the Company may
only exercise its right to terminate this Agreement pursuant to this
Section 8.01(h) if (i) the stockholders of the Company have not yet adopted
this Agreement at the Company Meeting or any adjournment or postponement
thereof or by written consent; (ii) the Company shall have complied in all
material respects with Section 6.04; (iii) the Board of Directors of the
Company (acting upon the recommendation of the Special Committee) and after
consultation with the Special Committee Financial Advisor determines in
good faith that such Acquisition Proposal is a Superior Proposal; (iv) at
least five business days shall have passed since Parent received written
notice from the Company advising Parent that the Board of Directors of the
Company (acting upon the recommendation of the Special Committee) is
prepared to accept such Acquisition Proposal, which notice shall specify
the material terms and conditions of such Acquisition Proposal and if by
such fifth business day, Parent shall not have agreed to increase the
Merger Consideration and/or revise the other terms of this Agreement so
that the Merger Consideration and such terms, taken together as so revised,
are, in the good faith judgment of the Board of Directors of the Company
(acting upon the recommendation of the Special Committee), superior to such
the consideration and terms of such Acquisition Proposal and (v)
simultaneously with such termination, the Company shall make the payment
specified in Section 8.02(b).
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SECTION 8.02. Effect of Termination. (a) In the event of termination of
this Agreement by either Parent or the Company as provided in Section 8.01, this
Agreement shall forthwith become void and have no effect, and none of Parent,
Merger Sub, the Company, any of their respective Subsidiaries or any of the
officers or directors of any of them shall have any liability of any nature
whatsoever hereunder, or in connection with the transactions contemplated
hereby, except that Sections 6.03(d), 6.03(e), 8.02, 8.04 and Article IX shall
survive any termination of this Agreement, and notwithstanding anything to the
contrary contained in this Agreement, neither Parent, Merger Sub, nor the
Company shall be relieved or released from any liabilities or damages arising
out of its willful breach of any provision of this Agreement; provided that in
no event shall any party hereto be liable for any punitive damages.
(b) In the event that:
(i) (x) Parent terminates this Agreement pursuant to (A) Section
8.01(d) as a result of an intentional breach by the Company of any
representation, warranty, covenant or agreement contained herein, or (B)
Section 8.01(f) or (y) the Company or Parent terminates this Agreement
pursuant to Section 8.01(e),
(ii) prior to such termination an Acquisition Proposal shall have been
communicated to the executive management, the Special Committee or Board of
Directors of the Company or any person shall have publicly announced an
intention (whether or not conditional) to make an Acquisition Proposal, and
(iii) within 12 months of such termination, the Company or any of its
Subsidiaries consummates an Acquisition Proposal or enters into a
definitive agreement with respect to an Acquisition Proposal,
then the Company shall pay to Parent a termination payment equal to $100 million
($100,000,000.00) (the "Company Termination Amount"), by wire transfer of
immediately available funds upon the earlier of (A) signing of a definitive
agreement with respect to an Acquisition Proposal and (B) consummation of an
Acquisition Proposal.
(c) In the event that the Company terminates this Agreement pursuant to
Section 8.01(h), then the Company shall pay the Company Termination Amount by
wire transfer of immediately available funds concurrently with delivery of
notice of termination by the Company and the making of such payment shall be a
condition of such termination.
(d) For purposes of Sections 8.01 and 8.02, "Acquisition Proposal" shall
mean a transaction or series of transactions which, if consummated as proposed,
would constitute an Acquisition Proposal (as defined in Section 6.04) which
would result in a person or group (as such term is defined in Section 13(d) of
the Exchange Act), other than Parent and its affiliates, owning, directly or
indirectly, 50% of the voting interests in the Company then outstanding or 50%
or more of the assets of the Company and its Subsidiaries, taken as a whole.
(e) The Company acknowledges that the agreements contained in this Section
8.02 are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, Parent would not enter into this Agreement;
accordingly, if the Company fails promptly to pay any amount due pursuant to
this Section 8.02 and, in order to obtain such payment, Parent commences a suit
which results in a judgment against the Company for the payment set forth in
this Section 8.02, the Company shall pay to Parent its costs and expenses
(including reasonable attorneys' fees) in connection with such suit, together
with interest on the Company Termination Amount from each date for payment until
the date of such payment at the prime rate of Citibank N.A. in effect on the
date such payment was required to be made. For the avoidance of doubt, approval
by the stockholders of the Company shall not be a condition to the payment of
any amount specified in this Section 8.02.
SECTION 8.03. Amendment. Subject to compliance with applicable law, this
Agreement may be amended by Parent, Merger Sub and the Company at any time
before or after adoption of this Agreement by the stockholders of the Company;
provided, however, that after any adoption of this Agreement by the stockholders
of the Company, no amendment shall be made which by law requires further
approval by such stockholders without such further approval. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
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SECTION 8.04. Extension; Waiver. At any time prior to the Effective Time,
subject to compliance with applicable law, Parent, Merger Sub and the Company
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligations or other acts of the other parties hereto for its
benefit, (b) waive any inaccuracies in the representations and warranties of the
other parties for its benefit contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein for the waiving party's benefit. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in a written instrument signed on behalf of such party, but such
extension or waiver or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement
and any certificate delivered pursuant hereto by any person shall terminate at
the Effective Time or upon the termination of this Agreement pursuant to Section
8.01, as the case may be, except that the agreements set forth in Articles I and
II and Sections 6.05, 6.10, 6.12 and 6.13 shall survive the Effective Time
indefinitely, and those set forth in Sections 6.03(d), 6.03(e), 8.02, 8.04 and
this Article IX shall survive termination indefinitely.
SECTION 9.02. Expenses. Except as otherwise provided in this Section, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense; provided, however, that the costs and expenses of printing and mailing
the Proxy Statement, and all filing and other fees paid to the SEC in connection
with the Merger, shall be borne equally by Merger Sub and the Company.
SECTION 9.03. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested)
or by a nationally recognized overnight courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 9.03):
if to Parent or Merger Sub:
x/x XXX Xxxxxxx
00 xxx Xxxxxxxx
00000 Xxxxx, XXXXXX
Telecopy: 011-33-1-40-14-57-65
Attention: Xxxxxx Xxxxxxx
with copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
if to the Company:
c/o BancWest Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
SECTION 9.04. Definitions and Usage. (a) For purposes of this Agreement,
the term:
(i) "affiliate" of a specified person means a person who directly or
indirectly through one or more intermediaries controls, is controlled by,
or is under common control with, such specified person;
(ii) "beneficial owner" with respect to any shares means a person who
shall be deemed to be the beneficial owner of such shares which such person
beneficially owns, as defined in Rule 13d-3 under the Exchange Act;
(iii) "business day" means any day other than a Saturday, Sunday or
one on which banks are authorized by law to close in New York, New York,
Paris, France, San Francisco, California or Honolulu, Hawaii;
(iv) "Code" means the Internal Revenue Code of 1986, as amended;
(v) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, as trustee or executor, by contract or credit
arrangement or otherwise;
(vi) "Material Adverse Effect" means,
(A) with respect to the Company, any effect that (1) is or is
reasonably likely to be material and adverse to the financial condition,
business or results of operations of the Company and its Subsidiaries
taken as a whole other than any change, effect, event or occurrence
arising out of the performance by the parties of their obligations under
this Agreement or (2) would prevent or materially impair the ability of
such person to perform its obligations under this Agreement or to
consummate the transactions contemplated hereby; and
(B) with respect to Parent, any effect that would prevent or
materially impair or delay the ability of Parent and Merger Sub to
perform their obligations under this Agreement or to consummate the
transactions contemplated hereby;
provided, however, that Material Adverse Effect shall not be deemed to
include the impact of (i) changes in banking and other laws of general
applicability or interpretations thereof by courts or governmental
authorities, (ii) changes in GAAP or regulatory accounting requirements
applicable to banks and their holding companies generally, (iii) this
Agreement and the transactions contemplated hereby and the announcement
hereof, (iv) actions or omissions of a party to this Agreement taken
with the prior written consent of the other parties to this Agreement,
in contemplation of the transactions contemplated hereby, (v) changes in
prevailing interest rates, currency exchange rates or general economic
conditions, or the occurrence of other events or developments affecting
banks and their holding companies generally except to the extent that
such changes, events or developments have an adverse effect on the
Company and its Subsidiaries taken as a whole that is materially greater
than the adverse effect on comparable entities and (vi) any
modifications or changes to valuation policies and practices of the
Company or any of its Subsidiaries in connection with the Merger or
restructuring charges, in each case taken with the prior approval of
Parent, in connection with the Merger, in each case in accordance with
GAAP;
(vii) "person" means an individual, corporation, limited liability
company, partnership, limited partnership, syndicate, person (including,
without limitation, a "person" as defined in Section 13(d)(3)
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of the Exchange Act), trust, association or entity or government, political
subdivision, agency or instrumentality of a government;
(viii) "Standstill Agreement" means the Standstill and Governance
Agreement, dated as of November 1, 1998, between the Company and Parent.
(ix) "Subsidiary" and "Significant Subsidiary" shall have the meanings
ascribed to them in Rule 1-02 of Regulation S-X of the SEC. Notwithstanding
the foregoing, for purposes of this Agreement, the Company shall not be
deemed a Subsidiary or a Significant Subsidiary of Parent.
(x) "Superior Proposal" means any Acquisition Proposal which the Board
of Directors of the Company determines in its good faith judgment (A)
would, if consummated, be more favorable than the Merger to the holders of
Company Common Stock from a financial point of view and (B) constitutes a
transaction that, other than with respect to obtaining stockholder
approval, is reasonably capable of being consummated on the terms set
forth, taking into account all legal, financial, regulatory and other
aspects of such proposal.
A reference in this Agreement to any statute shall be to such statute as
amended from time to time, and to the rules and regulations promulgated
thereunder.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
---- ----------
Acquisition Proposal........................................ 6.04, 8.02
Agreement................................................... Recitals
BHCA........................................................ 3.01(a)
Burdensome Condition........................................ 6.02(d)
Certificate of Merger....................................... 1.02
Certificate................................................. 2.01
Claims and Proceedings...................................... 3.11(a)
Class A Common Stock........................................ Recitals
Closing..................................................... 1.02
Closing Date................................................ 1.02
Company..................................................... Recitals
Company Benefit Plans....................................... 3.13(a)
Company Common Shares....................................... Recitals
Company Common Stock........................................ Recitals
Company Contract............................................ 3.16
Company Disclosure Schedule................................. 2.06(a)
Company Employees........................................... 6.11(b)
Company Equity Plans........................................ 2.03(b)
Company Meeting............................................. 6.01(a)
Company Preferred Stock..................................... Recitals
Company Regulatory Agreement................................ 3.17
Company Reports............................................. 3.14
Company Stockholder Approval................................ 3.03(c)
Company Stock Option Plans.................................. 2.03(a)
Company Stock Plans......................................... 2.03(b)
Company Termination Amount.................................. 8.02(b)
Confidential Information.................................... 6.03(d)
Contract.................................................... 3.03(b)
Covered Parties............................................. 6.05(b)
DGCL........................................................ Recitals
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TERM SECTION
---- ----------
Dissenting Shares........................................... 2.04(a)
DLLCA....................................................... Recitals
Effective Time.............................................. 1.02
Environmental Law........................................... 3.19(a)
ERISA....................................................... 3.13(a)
Exchange Act................................................ 3.06
Federal Reserve Board....................................... 3.04
Fiduciary Shares............................................ 2.01(b)
GAAP........................................................ 3.06
Governmental Entity......................................... 3.04
HSR Act..................................................... 3.04
Incentive Compensation Plan................................. 6.11(a)
Indemnified Parties......................................... 6.05(c)
Injunction.................................................. 7.01(c)
Lien........................................................ 3.01(b)
Litigation.................................................. 9.10
Merger...................................................... Recitals
Merger Consideration........................................ 2.01(c)
Merger Sub.................................................. Recitals
Merger Sub Units............................................ 2.01
NYSE........................................................ 3.04
Option...................................................... 2.03(a)
Option Spread............................................... 2.03(a)
Original Merger Agreement................................... Recitals
Parent...................................................... Recitals
Parent Disclosure Schedule.................................. 2.06
Parent Plans................................................ 6.11(c)
Parent Regulatory Agreement................................. 4.05(b)
Paying Agent................................................ 2.02(b)
PBGC........................................................ 3.13(g)
Pre-Termination Acquisition Proposal Event.................. 8.02(d)
Process Agent............................................... 9.10
Pro Rata Dividend........................................... 5.02(b)
Proxy Statement............................................. 6.02(a)
Regulatory Agencies......................................... 3.05
Representatives............................................. 6.03(a)
Requisite Regulatory Approvals.............................. 7.01(b)
Restricted Shares........................................... 2.03(b)
SEC......................................................... 3.04
Securities Act.............................................. 3.14
Special Committee........................................... Recitals
Special Committee Financial Advisor......................... 3.08
SRO......................................................... 3.04
Standstill Agreement........................................ 3.07(c)
Surviving Corporation....................................... 1.01
Surviving Corporation Common Stock.......................... Recitals
Taxes....................................................... 2.01(d)
US Parent................................................... Recitals
Voting Debt................................................. 3.02
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(c) A fact, event, circumstance or occurrence shall be within a person's
"Knowledge" if, with respect to the Company or any of its Subsidiaries, such
fact, event, circumstance or occurrence is or was actually known by any of the
Company's or the relevant Subsidiary's executive officers or directors, or, with
respect to the Parent or any of its Subsidiaries, such fact, event or
circumstance or occurrence is or was actually known by any of Parent's or the
relevant Subsidiary's executive officers or directors.
(d) The symbol "$" and the word "dollar" or "dollars" shall refer to the
lawful currency of the United States of America.
SECTION 9.05. Accounting Terms. All accounting terms used herein which are
not expressly defined in this Agreement shall have the respective meanings given
to them in accordance with GAAP.
SECTION 9.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the major economic or
legal substance of the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Merger be consummated as originally contemplated to the fullest
extent possible.
SECTION 9.07. Entire Agreement; Assignment. This Agreement (including the
Parent Disclosure Schedule and the Company Disclosure Schedule, which are hereby
incorporated herein and made a part hereof for all purposes as if fully set
forth herein) constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other parties, which shall
not be unreasonably withheld, except that Merger Sub may assign all or any of
its rights and obligations hereunder to any wholly owned subsidiary of Parent or
Merger Sub; provided, that no such assignment shall change the amount or nature
of the Merger Consideration or relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations.
SECTION 9.08. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, other than Section 6.05 (which is intended to be for the
benefit of the persons covered thereby and may be enforced by such persons).
SECTION 9.09. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
SECTION 9.10. Governing Law; Consent to Jurisdiction. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware applicable to contracts made and to be performed entirely in such
State. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the non-exclusive jurisdiction of the courts of the State
of New York and of the United States of America, in each case located in the
County of New York, for any action, proceeding or investigation in any court or
before any governmental authority ("Litigation") arising out of or relating to
this Agreement and the transactions contemplated hereby. Each of the parties
hereto hereby irrevocably and unconditionally waives, and agrees not to assert,
by way of motion, as a defense, counterclaim or otherwise, in any such
Litigation, the defense of sovereign immunity, any claim that it is not
personally subject to the jurisdiction of the aforesaid courts for any reason
other than the failure to serve process in accordance with this Section 6.12,
that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), and to the fullest extent
permitted by applicable law, that
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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.
(b) Parent hereby irrevocably designates French American Banking
Corporation (in such capacity, the "Process Agent"), with an office at 000 Xxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000 its designee, appointee and agent to receive,
for and on its behalf, service of process in such jurisdiction in any Litigation
arising out of or relating to this Agreement and such service shall be deemed
complete upon delivery thereof to the Process Agent; provided that in the case
of any such service upon the Process Agent, the party effecting such service
shall also deliver a copy thereof to Parent in the manner provided in Section
9.03. Each of the parties further irrevocably consents to the service of process
out of any of the aforementioned courts in any such Litigation by the mailing of
copies thereof by registered mail, postage prepaid, to such party at its address
set forth in this Agreement, such service of process to be effective upon
acknowledgment of receipt of such registered mail. Parent expressly acknowledges
that the foregoing waiver is intended to be irrevocable under the laws of the
State of New York and of the United States of America; provided that Parent's
consent to jurisdiction and service contained in this Section 9.10 is solely for
the purpose referred to in this Section 9.10 and shall not be deemed to be a
general submission to said courts or in the State of New York other than for
such purpose. If the Process Agent shall cease to act as such or to exist, BNP
covenants that it shall appoint without delay another such agent reasonably
satisfactory to the Company.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed consent by any party to jurisdiction in any litigation initiated, or
service of process, by any person who is not a party hereto.
SECTION 9.11. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 9.12. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
SECTION 9.13. Construction. This Agreement and any documents or
instruments delivered pursuant hereto or in connection herewith shall be
construed without regard to the identity of the person who drafted the various
provisions of the same. Each and every provision of this Agreement and such
other documents and instruments shall be construed as though all of the parties
participated equally in the drafting of the same. Consequently, the parties
acknowledge and agree that any rule of construction that a document is to be
construed against the drafting party shall not be applicable either to this
Agreement or such other documents and instruments.
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IN WITNESS WHEREOF, the Company, Parent and Merger Sub have caused this
Agreement to be executed as of July 19, 2001 by their respective officers
thereunto duly authorized.
BANCWEST CORPORATION
By: /s/ XXXXXX X. XXXX, XX.
-----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Chairman and Chief Executive
Officer
BNP PARIBAS
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Head of International Retail
Banking
CHAUCHAT L.L.C.
By its sole Member, Chauchat Holdings
Corporation
By: /s/ XXXXXXX XXXXXX
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
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EXHIBIT A
FORM OF
CERTIFICATE OF INCORPORATION
OF
BANCWEST CORPORATION
FIRST: The name of the corporation is BancWest Corporation (hereinafter
referred to as the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle 19801. The name and address of its resident
agent is The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is 150,000,000 shares of common stock and the par value of
each of such shares is $0.01.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the by-laws.
Election of directors need not be by ballot unless the by-laws so provide.
(2) The Board of Directors shall have powers without the assent or
vote of the stockholders to make, alter, amend, change, add to or repeal
the by-laws of the Corporation; to fix and vary the amount to be reserved
for any proper purpose; to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the Corporation; to determine
the use and disposition of any surplus or net profits; and to fix the times
for the declaration and payment of dividends.
(3) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or
at any meeting of the stockholders called for the purpose of considering
any such act or contract, and any contract or act that shall be approved or
be ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and as binding
upon the Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether or
not the contract or act would otherwise be open to legal attack because of
directors' interest, or for any other reason.
(4) In addition to the powers and authorities herein before or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this certificate, and to any
by-laws from time to time made by the stockholders; provided, however, that
no by-laws so made shall invalidate any prior act of the directors which
would have been valid if such by-law had not been made.
SIXTH: To the fullest extent permitted by the Delaware General Corporation
Law as it exists or may hereafter be amended, a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of a fiduciary duty as a director.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any
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court of equitable jurisdiction within the State of Delaware, may, on the
application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers appointed
for the Corporation under the provisions of section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under the provisions of
section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
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EXHIBIT B
FORM OF
AMENDED AND RESTATED
BY-LAWS
OF
BANCWEST CORPORATION
ARTICLE I
SHAREHOLDERS
SECTION 1. Place of Meetings. Meetings of the shareholders may be held at
such place or places, within or without the State of Delaware, as shall be fixed
by the directors and stated in the notice of the meeting.
SECTION 2. Annual Meeting. The annual meeting of shareholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date as may be fixed by the
directors and stated in the notice of the meeting.
SECTION 3. Notice of Annual Meeting. Notice of the annual meeting shall be
given to each shareholder entitled to vote, at least ten days prior to the
meeting.
SECTION 4. Special Meetings. Special meetings of the shareholders for any
purpose or purposes may be called by the President or Secretary and must be
called upon receipt by either of them of the written request of the holders of
twenty-five percent of the stock then outstanding and entitled to vote.
SECTION 5. Notice of Special Meeting. Notice of a special meeting, stating
the time, place and purpose or purposes thereof, shall be given to each
shareholder entitled to vote, at least ten days prior to the meeting. The notice
shall also set forth at whose direction it is being issued.
SECTION 6. Quorum. At any meeting of the shareholders, the holders of a
majority of the shares of stock then entitled to vote shall constitute a quorum
for all purposes, except as otherwise provided by law or the Certificate of
Incorporation.
SECTION 7. Voting. At each meeting of the shareholders, every holder of
stock then entitled to vote may vote in person or by proxy, and, except as may
be otherwise provided by the Certificate of Incorporation, shall have one vote
for each share of stock registered in such holder's name.
SECTION 8. Adjourned Meeting. Any meeting of shareholders may be adjourned
to a designated time and place by a vote of a majority in interest of the
shareholders present in person or by proxy and entitled to vote, even though
less than a quorum is so present. No notice of such an adjourned meeting need be
given, other than by announcement at the meeting, and any business may be
transacted which might have been transacted at the meeting as originally called.
SECTION 9. Action by Written Consent of Shareholders. Whenever by any
provision of statute or of the Certificate of Incorporation or of these By-Laws,
the vote of shareholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and vote of
shareholders may be dispensed with, if holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted shall consent in writing to such corporate action being taken.
ARTICLE II
DIRECTORS
SECTION 1. Number. The number of directors shall be determined from time
to time by resolution adopted by affirmative vote of a majority of such
directors then in office. The directors shall hold office for the
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term of one year and until their successor or successors is or are elected and
shall qualify. The number of directors may be less than three when all of the
shares are owned by less than three shareholders, but in such event the number
of directors may not be less than the number of shareholders. Directors need not
be shareholders.
SECTION 2. Powers. The Board of Directors may adopt such rules and
regulations for the conduct of its meetings, the exercise of its powers and the
management of the affairs of the corporation as it may deem proper, not
inconsistent with the laws of the State of Delaware, the Certificate of
Incorporation or these By-Laws.
In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the directors may exercise all such powers of the
corporation and do such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the shareholders.
SECTION 3. Meeting, Quorum, Action without Meeting. Meetings of the Board
may be held at any place, either within or outside the State of Delaware,
provided a quorum be in attendance. Except as may be otherwise provided by the
Certificate of Incorporation or by the Delaware General Corporation Law, a
majority of the directors in office shall constitute a quorum at any meeting of
the Board and the vote of a majority of a quorum of directors shall constitute
the act of the Board.
The Board of Directors may hold an annual meeting, without notice,
immediately after the annual meeting of shareholders. Regular meetings of the
Board of Directors may be established by a resolution adopted by the Board. The
Chairman of the Board (if any) or the President or Secretary may call, and at
the request of any two directors, must call a special meeting of the Board of
Directors, five days' notice of which shall be given by mail, or two days'
notice personally or by telegraph or cable to each director.
Any one or more members of the Board or any Committee thereof may
participate in a meeting of such Board or Committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
Any action required or permitted to be taken by the Board or any Committee
thereof may be taken without a meeting if all members of the Board or the
Committee consent in writing to the adoption of a resolution authorizing the
action.
The resolution and the written consents thereto by the members of the Board
or Committee shall be filed with the minutes of the proceedings of the Board or
Committee.
SECTION 4. Vacancies, Removal. Except as otherwise provided in the
Certificate of Incorporation or in the following paragraph, vacancies occurring
in the membership of the Board of Directors, from whatever cause arising
(including vacancies occurring by reason of the removal of directors without
cause and newly created directorships resulting from any increase in the
authorized number of directors), may be filled by a majority vote of the
remaining directors, though less than a quorum, or such vacancies may be filled
by the shareholders.
Except where the Certificate of Incorporation contains provisions
authorizing cumulative voting or the election of one or more directors by class
or their election by holders of bonds, or requires all action by shareholders to
be by a greater vote, any one or more of the directors may be removed, (a)
either for or without cause, at any time, by vote of the shareholders holding a
majority of the outstanding stock of the corporation entitled to vote, present
in person or by proxy, at any special meeting of the shareholders or, (b) for
cause, by action of the Board of Directors at any regular or special meeting of
the Board. A vacancy or vacancies occurring from such removal may be filled at
the special meeting of shareholders or at a regular or special meeting of the
Board of Directors.
SECTION 5. Committees. The Board of Directors, by resolution adopted by a
majority of the entire Board, may designate from its members an Executive
Committee or other committee or committees, each
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consisting of three or more members, with such powers and authority (to the
extent permitted by law) as may be provided in said resolution.
ARTICLE III
OFFICERS
SECTION 1. Executive Officers. The executive officers of the corporation
shall be a President, one or more Vice-Presidents, a Treasurer and a Secretary,
all of whom shall be elected annually by the directors, who shall hold office
during the pleasure of the directors. In addition, the Board of Directors may
elect a Chairman of the Board of Directors. Except for the offices of President
and Secretary, any two offices or more may be held by one person. Provided,
however, when all of the issued and outstanding stock of the corporation is
owned by one person, such person may hold all or any combination of offices. All
vacancies occurring among any of the officers shall be filled by the directors.
Any officer may be removed at any time by the affirmative vote of a majority
(unless the Certificate of Incorporation required a larger vote) of the
directors present at a special meeting of directors called for the purpose.
SECTION 2. Other Officers. The Board of Directors may appoint such other
officers and agents with such powers and duties as it shall deem necessary.
SECTION 3. The Chairman of the Board. The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors and he shall have and perform such other duties as from time to time
may be assigned to him by the Board of Directors or the Executive Committee.
SECTION 4. The President. The President, who may, but need not be a
director, shall, in the absence or non-election of a Chairman of the Board,
preside at all meetings of the shareholders and directors. While the directors
are not in session, he shall have general management and control of the business
and affairs of the corporation.
SECTION 5. The Vice-President. The Vice-President, or if there be more
than one, the senior Vice President, as determined by the Board of Directors, in
the absence or disability of the President, shall exercise the powers and
perform the duties of the President and each Vice-President shall exercise such
other powers and perform such other duties as shall be prescribed by the
directors.
SECTION 6. The Treasurer. The Treasurer shall have custody of all funds,
securities and evidences of indebtedness of the corporation; he shall receive
and give receipts and acquittances for money paid in on account of the
corporation, and shall pay out of the funds on hand all bills, pay-rolls, and
other just debts of the corporation, of whatever nature, upon maturity; he shall
enter regularly in books to be kept by him for that purpose, full and accurate
accounts of all moneys received and paid out by him on account of the
corporation, and he shall perform all other duties incident to the office of
Treasurer and as may be prescribed by the directors.
SECTION 7. The Secretary. The Secretary shall keep the minutes of all
proceedings of the directors and of the shareholders; he shall attend to the
giving and serving of all notices to the shareholders and directors or other
notice required by law or by these By-Laws; he shall affix the seal of the
corporation to deeds, contracts and other instruments in writing requiring a
seal, when duly signed or when so ordered by the directors; he shall have charge
of the certificate books and stock books and such other books and papers as the
Board may direct, and shall perform all other duties incident to the office of
Secretary.
SECTION 8. Salaries. The salaries of all officers shall be fixed by the
Board of Directors, and the fact that any officer is a director shall not
preclude him from receiving a salary as an officer, or from voting upon the
resolution providing the same.
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ARTICLE IV
CAPITAL STOCK
SECTION 1. Form and Execution of Certificates. Certificates of stock shall
be in such form as required by the Delaware General Corporation Law and as shall
be adopted by the Board of Directors. They shall be numbered and registered in
the order issued; shall be signed by the Chairman or a Vice-Chairman of the
Board (if any) or by the President or a Vice-President and by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be
sealed with the corporate seal or a facsimile thereof. When such a certificate
is countersigned by a transfer agent or registered by a registrar, the
signatures of any such officers may be facsimile.
SECTION 2. Transfer. Transfer of shares shall be made only upon the books
of the corporation by the registered holder in person or by attorney, duly
authorized, and upon surrender of the certificates for such shares properly
assigned for transfer.
SECTION 3. Lost or Destroyed Certificates. The holder of any certificate
representing shares of stock of the corporation may notify the corporation of
any loss, theft or destruction thereof, and the Board of Directors may
thereupon, in its discretion, cause a new certificate for the same number of
shares to be issued to such holder upon satisfactory proof of such loss, theft
or destruction, and the deposit of indemnity by way of bond or otherwise, in
such form and amount and with such surety or sureties as the Board of Directors
may require, to indemnify the corporation against loss or liability by reason of
the issuance of such new certificates.
SECTION 4. Record Date. In lieu of closing the books of the corporation,
the Board of Directors may fix, in advance, a date, not exceeding fifty days,
nor less than ten days, as the record date for the determination of shareholders
entitled to receive notice of, or to vote, at any meeting of shareholders, or to
consent to any proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of any dividends, or allotment of any
rights, or for the purpose of any other action.
ARTICLE V
INDEMNIFICATION
SECTION 1. Indemnification. To the extent permitted by Delaware law from
time to time in effect, the corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action or suit by or in the right of the
corporation to procure a judgment in its favor) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or,
while a director, officer, employee or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. Indemnification. To the extent permitted by Delaware law from
time to time in effect, the corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or, while a director,
officer, employee or agent of the corporation, is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture,
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trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
SECTION 3. Expenses. To the extent that a present or former director or
officer or an employee or agent of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, such person shall be indemnified by the corporation against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
SECTION 4. Authorization of Indemnification Payments. Any indemnification
under Sections 1 and 2 of this Article (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director, officer, employee or
agent is proper in the circumstances because such person has met the applicable
standard of conduct set forth in said Sections 1 and 2 of this Article. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, event though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by independent
legal counsel (compensated by the corporation) in a written opinion, or (4) by
the stockholders.
SECTION 5. Interim Reimbursement of Expenses. Expenses incurred by a
present or former director or officer of the corporation in defending a civil or
criminal action, suit or proceeding shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this Article. Expenses incurred
in defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the employee or
agent to repay such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the corporation as authorized in this
Article.
SECTION 6. Non-Exclusive Remedy. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
SECTION 7. Former Directors, Officer, Employees and Agents. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8. Insurance. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or who is or was serving at the request of the corporation, as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or of Section 145 of the General Corporation Law of Delaware, as it may
be amended or substituted for.
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SECTION 9. Claims Commenced by Indemnitee. Notwithstanding Sections 1 and
2 of this Article, except as otherwise provided in Section 10 hereof, the
corporation shall be required to indemnify an indemnitee in connection with any
action, suit or proceeding (or part thereof) commenced by such indemnitee only
if the commencement of such action, suit or proceeding (or part thereof) by the
indemnitee was authorized by the Board of Directors.
SECTION 10. Enforcement by Indemnitee. If a claim for indemnification or
advancement of expenses under this Article is not paid in full within sixty days
after a written claim therefor by the indemnitee has been received by the
Corporation, the indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation shall have
the burden of proving that the indemnitee is not entitled to the requested
indemnification or advancement of expenses under applicable law.
SECTION 11. Effect of Repeal or Modification. Any repeal or modification
of the foregoing provisions of this Article shall not adversely affect any right
or protection hereunder of any indemnitee in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE VI
MISCELLANEOUS
SECTION 1. Dividends. The directors may declare dividends from time to
time upon the capital stock of the corporation from the surplus or net profits
available therefor.
SECTION 2. Seal. The directors shall provide a suitable corporate seal
which shall be in the charge of the Secretary and shall be used as authorized by
the By-Laws.
SECTION 3. Fiscal Year. The fiscal year of the corporation shall be fixed
by the directors.
SECTION 4. Checks, Notes, etc. Checks, notes, drafts, bills of exchange
and orders for the payment of money shall be signed or endorsed in such manner
as shall be determined by the directors.
The funds of the corporation shall be deposited in such bank or trust
company, and checks drawn against such funds shall be signed in such manner, as
may be determined from time to time by the directors.
SECTION 5. Notice and Waiver of Notice. Any notice required to be given
under these By-Laws may be waived by the person entitled thereto, in writing, by
telegram, cable or radiogram, and the presence of any person at a meeting shall
constitute waiver of notice thereof as to such person.
Whenever any notice is required by these By-Laws to be given, personal
notice is not meant unless expressly so stated; and any notice so required shall
be deemed to be sufficient if given by depositing it in a post office or post
box in a sealed postpaid wrapper, addressed to such shareholder, officer or
director, at such address as appears on the books of the corporation and such
notice shall be deemed to have been given on the day of such deposit.
ARTICLE VII
AMENDMENTS
SECTION 1. By Shareholders. These By-Laws may be amended at any
shareholders' meeting by vote of the shareholders holding a majority (unless the
Certificate of Incorporation requires a larger vote) of the outstanding stock
having voting power, present either in person or by proxy, provided notice of
the amendment is included in the notice or waiver of notice of such meeting.
SECTION 2. By Directors. The Board of Directors may also amend these
By-Laws at any regular or special meeting of the Board by a majority (unless the
Certificate of Incorporation requires a larger vote) vote of the entire Board,
but any By-Laws so made by the Board of Directors may be altered or repealed by
the shareholders.
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