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Exhibit 99(d)(3)
CONFIDENTIAL
WAIVER LETTER
May 4, 2001
BNP Paribas
00, Xxxxxxxxx xxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
Ladies and Gentlemen:
Reference is made to the Standstill and Governance Agreement, dated as of
November 1, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Standstill Agreement"), between BancWest Corporation (formerly known
as First Hawaiian, Inc.), a Delaware corporation (the "Company"), and BNP
Paribas (formerly known as Banque Nationale de Paris), a societe anonyme or
limited liability banking corporation organized under the laws of the Republic
of France ("BNP"). Capitalized terms not otherwise defined in this Waiver Letter
have the same meanings as specified in the Standstill Agreement.
A. PRELIMINARY STATEMENTS
1. Pursuant to Article II of the Standstill Agreement, until November 1,
2002, BNP is subject to certain Acquisition Restrictions which restrict its
ability to, among other things, acquire or propose to acquire additional Voting
Securities of the Company or make a Company Transaction Proposal.
2. Notwithstanding the foregoing restrictions, pursuant to Section 2.2(c)
of the Standstill Agreement, BNP may at any time submit a confidential Business
Combination Proposal for the Company so long as such proposal is delivered only
to the Executive Committee in a manner which does not require public disclosure
thereof and BNP and its representatives keep confidential and refrain from
disclosing to any other Person the fact that they have made such a Business
Combination Proposal or any of the terms thereof.
3. The Executive Committee has heretofore created a special committee of
Independent Directors (the "Special Committee") and granted it full authority
to, among other things, respond to exploratory discussions with respect to the
possibility of BNP making a Business Combination Proposal and, if so, the
possible terms thereof.
4. On the basis of those exploratory discussions, the Special Committee
has unanimously determined that it is in the best interests of the Company and
the holders of the Company Common Stock to authorize BNP to make such a Business
Combination Proposal on terms consistent with the exploratory discussions
between BNP and the Special Committee.
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B. WAIVER
1. Based upon the foregoing determination of the Special Committee,
directors constituting a majority of the Independent Directors currently in
office and who, together with the Class A Directors, constitute a majority of
the entire Board, acting pursuant to Section 6.5 of the Standstill Agreement,
have approved this letter, and by its signature below, the Company hereby waives
Article II of the Standstill Agreement solely to the extent necessary to allow
BNP to submit a Business Combination Proposal to the Special Committee (on terms
consistent with the exploratory discussions that have taken place) for its
consideration and, if the Special Committee so elects, to the full Board for its
consideration.
2. It is further understood and agreed that any disclosure made by BNP in
accordance with and as required by the Exchange Act with respect to the making
of such Business Combination Proposal shall not constitute a violation of the
Standstill Agreement, provided that prior to making such disclosures BNP shall
use its reasonable best efforts to furnish copies thereof to the Special
Committee or its representatives and provide them with a reasonable opportunity
to review and comment thereon.
C. MISCELLANEOUS
The waiver set forth herein is limited in effect, shall apply only as
expressly set forth herein and shall not constitute or be deemed to be a waiver
of or consent under any other provision of the Standstill Agreement or to any
Business Combination Proposal other than that set forth in the Draft Letter. The
Standstill Agreement shall otherwise remain in full force and effect in all
respects.
This Waiver Letter may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same document. Delivery of an executed counterpart of a
signature page to this Waiver Letter by telecopier shall be effective as
delivery of a manually executed counterpart of this Waiver Letter.
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This Waiver Letter shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to the principles of
conflicts of law.
BANCWEST CORPORATION
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name:
Title:
Agreed to as of the date first above written:
BNP PARIBAS
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Head of International Retail Banking
