ESOP Stock Purchase Agreement
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This Agreement dated as of January 22, 1990 is between BayBanks, Inc. (the "Company"), a
Massachusetts corporation, and Marine Midland Bank, N.A. (the "Trustee"), as Co-Trustee under the Trust Agreement under the Savings, Profit Sharing and Stock Ownership Plan for Employees of BayBanks, Inc. and Affiliated Companies (the "Plan"). The Company desires to sell, and the Trustee desires to purchase 800,000 shares of Common Stock, par value $2.00 per share, of the Company (the "Shares"), for the purposes of the Plan's employee stock ownership plan feature (the "ESOP"), at the price of $23.25 per share, which is the lower of (i) the last reported sale price of the Common Stock on the National Association of Securities Dealers Automated Quotation System on the Closing Date and (ii) the average of such last reported sale price on each of the three consecutive business days ending with and including the Closing Date, or an aggregate amount equal to $18,600,000 (the "Purchase Price").
Accordingly, the parties hereby agree as follows:
1. Acquisition of Stock.
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1.1. Upon the terms and subject to the conditions hereof, the Company shall issue, sell, transfer, and deliver the Shares to the Trustee, and the Trustee shall purchase the Shares for the Purchase Price in the manner set forth below.
1.2. The consummation of the purchase and sale contemplated hereby shall take place on January 22, 1990, or such other date as the parties may mutually agree (the "Closing Date").
1.3. On the Closing Date, the Trustee shall deliver or cause to be delivered to the Company a bank check or wire transfer in an amount equal to the Purchase Price, and the Company shall deliver to the Trustee a duly executed Certificate or certificates representing 799,400 of the Shares. The Company shall deliver to the Trustee a duly executed certificate or certificates representing 600 of the Shares as soon as practicable, but not later than thirty days, after the Closing Date.
1.4. No Commission will be charged to or payable by the Trustee in connection with the purchase of the Shares hereunder.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company represents, warrants and covenants as follows (capitalized terms used in this Section 2 and not defined in this Agreement are used with the same respective meanings as in the Term Loan and Guaranty Agreement of even date herewith among the Company, the Trustee, and Westpac Banking Corporation (the "Loan Agreement")):
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2.1. When the Shares are issued and delivered against payment therefor, all of such Shares shall have been duly and validly authorized and will constitute fully-paid and non-assessable shares of Common Stock of the Company.
2.2. The Company has full right and authority to issue, sell, transfer, and deliver the Shares and will effectively transfer to the Trustee, on the Closing Date, the full right, title, and interest therein and thereto, free and clear of all options, claims, charges, encumbrances, agreements, trusts, equities, and rights, whether contingent or absolute, of any nature whatsoever, except for beneficial interests accruing to ESOP participants under the Plan and applicable law and the matters referred to in Section 4.
2.3. The ESOP has been duly authorized and is an employee stock ownership plan within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended.
2.4. The Company (i) is a corporation duly organized and validly existing and in good standing under the laws of the Commonwealth of Massachusetts, (ii) is duly licensed or qualified to do business and in good standing in each jurisdiction where the failure to be so licensed or qualified could have a material adverse effect on its ability to perform any of its obligations under this Agreement, and (iii) has all requisite power and authority to own its properties and conduct its business as presently conducted and to execute and deliver, and to perform its obligations under, this Agreement.
2.5. The consolidated financial statements of the Company and its Subsidiaries for the year ended December 31, 1988, previously delivered to the Trustee fairly present in accordance with GAAP the consolidated financial position of the Company and its Subsidiaries as of the date thereof and the consolidated results of their operations for the year then ended. The financial information contained in the Company's press release dated January 12, 1990, furnished to the Trustee was prepared by the Company in good faith. Except as disclosed to the Trustee in such press release or otherwise in writing prior to the date hereof, since December 31, 1988, there has been no material adverse change in the financial condition or business of the Company and its Subsidiaries, taken as a whole, and no change which could materially impair the ability of the Company to perform its obligations hereunder.
2.6. There is no action, suit, proceeding or investigation at law or in equity by or before any court, governmental body, agency, com ...